Opinion
No. 17,351.
Decided February 23, 1954.
An action involving the taking of a deposition to be used in the trial of a cause in the district court. A rule to show cause was duly issued by the Supreme Court, but after due consideration, it held, "The application here for a writ of prohibition is premature."
Rule to Show Cause Discharged.
1. PROHIBITION — Rule to Show Cause. On an application for a writ of prohibition, the court issued a rule to show cause, but on hearing, it held, "The application here for a writ of prohibition is premature. The rule to show cause is discharged."
Original Proceeding.
Messrs. LEWIS MURRAY, Mr. STANLEY W. PRISNER, for plaintiffs.
Mr. ROBERT A. THEOBALD, for defendants.
PLAINTIFFS herein, Virgil M. Cox and Vera A. Cox, on January 20, 1954, filed their complaint for a writ of prohibition against the District Court of Summit County, Colorado, William H. Luby, the judge thereof, and Leo D. Wells and Mary Jane Wells, as defendants: A rule to show cause, directed to defendants, was issued January 21, 1954. The record was filed January 21, 1954. The parties will be designated as they appeared in the trial court, namely, plaintiffs Wells, defendants Cox, and the District Court.
From the record, the facts here pertinent disclose that plaintiffs Wells instituted a suit in the District Court in and for Summit county, Colorado, against defendants Cox, for judgment on a secured note and to foreclose a chattel mortgage on tavern fixtures located in Dillon, Colorado. By appropriate pleadings the cause came to issue November 4, 1953. A pre-trial conference was held December 2, 1953 and the cause then was set for trial to a jury for January 20, 1954. December 17, 1953 defendants Cox served notice to take plaintiffs Wells' deposition on December 22, 1953. December 18, 1953 plaintiffs Wells filed a motion to vacate the notice of taking the deposition for the reason that no subpoena had been served therefor. January 13, 1954 defendants Cox filed their motion to dismiss plaintiffs Wells' complaint for their failure to comply with the rules of civil procedure concerning the taking of plaintiffs Wells' deposition, or for a continuance of the trial until after plaintiffs Wells' deposition was taken. On January 19, 1954 defendants' motion to dismiss the complaint was denied, and the court ordered plaintiffs Wells' deposition to be taken January 20, 1954, and the date of trial to a jury was reset for January 22, 1954. No further application was made to the district Court. January 20, 1954 defendants Cox filed in this Court their complaint for a writ of prohibition. It appears that thereafter, January 25, 1954, plaintiffs Wells served notice on defendants Cox of an offer of plaintiffs Wells to appear for the taking of their deposition in Denver on January 25, 1954 or any time thereafter during January, 1954, waiving any notice thereof.
It appears that on January 19, 1954 the district court, on defendants Cox' application, had continued the trial to January 22, 1954, and that defendants Cox made no application to the district court for a further continuance. By this Court's order to show cause, all proceedings were stayed until our further order. This stay applied to proceedings of the district court only, and not to other proceedings in the preparation for trial. The taking of plaintiffs Wells' deposition may or could have been taken on January 25, 1954 or thereafter. The case in the district court is still pending and undetermined. The application here for a writ of prohibition is premature. The rule to show cause is discharged.
MR. CHIEF JUSTICE STONE concurs in the result.
MR. JUSTICE ALTER and MR. JUSTICE CLARK do not participate.