Opinion
Feb. 8, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Isaac S. Willson, Denver, for plaintiff-appellee.
David B. Richeson, Denver, for defendants-appellants.
ENOCH, Judge.
This is an unlawful detainer action which is a companion case to Bennett v. Perini, Colo.App., 493 P.2d 673, decided concurrently by this court. The parties in the two cases are essentially identical and will be referred to as follows: Plaintiff-Appellee, Carl N. Perini, is the surviving spouse of Judith Perini, and will be referred to as Perini. Ellen Bennett is the Executrix of the Estate of Judith Perini and will be referred to as Executrix. Marla Witmer is the daughter of Judith Perini.
While No. 70--683 was before the trial court, Perini instituted this unlawful detainer action against Executrix and Marla Witmer. His complaint alleged he was the owner of certain property (the same property involved in No. 70--683) and that Executrix and Marla Witmer were unlawfully and wrongfully in possession of this property. Executrix and Marla Witmer's answer generally denied the allegations in the complaint and asserted that until title was finally decided in No. 70--683, the court lacked jurisdiction to determine the unlawful detainer action. Subsequent to the final determination by the trial court in No. 70--683, in which there was no stay of execution, trial was held in this case and the court found Perini was entitled to possession of the disputed premises, and ordered Executrix and Marla Witmer to return the premises to Perini and to pay a total of $750 as reasonable rent computed from the date a notice to terminate the tenancy was served on Executrix and Marla Witmer by Perini. This judgment was entered subsequent to the trial court's judgment in No. 70--683. Executrix and Marla Witmer appeal, the only allegation of error being that the trial court did not have jurisdiction to rule in the unlawful detainer action until title to the property in question was finally determined in No. 70--683, which was on appeal. This argument presumes that the question of title was determined in No. 70--683. However, as we stated in our opinion in No. 70--683, the question of title was not determined by the trial court in that case. Accordingly, the trial court had jurisdiction to determine the issues presented in this unlawful detainer action. Hendron v. Bolander, 101 Colo. 414, 74 P.2d 706.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.