Opinion
Aug. 18, 1970
Editorial Note:
This case has been marked 'not for publication' by the court.
Dilts & Wilson, George E. Dilts, Cortez, for plaintiffs in error.
Stephenson, Campbell & Olmsted, Charles D. Olmsted, Santa Fe, N.M., Parga & Dyer, Cortez, for defendants in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
The plaintiffs in error, who were the plaintiffs in the trial court, brought this action as Civil Action No. 4299 in the District Court of Montezuma County against the defendants. Plaintiffs sought to recover the value of certain labor and materials allegedly performed and furnished by them to the defendants. Plaintiffs contend such labor and materials were 'extras' to a written contract between the parties dated April 7, 1964, and related to charges for labor and materials not contemplated by the original plans and specifications of such contract.
Prior to the commencement of this action, the plaintiffs had brought suit against the defendants in the same trial court in a case designated Civil Action No. 4044. In such action plaintiffs sought foreclosure of a mechanic's and materialman's lien against the real property owned by the defendants, and also sought recovery for all sums owing under the terms of the contract of April 7, 1964. The plaintiffs' complaint in case No. 4044 sought recovery for the amount of $9,005.84 plus interest and costs. Such sum included all amounts claimed for the value of the same 'extras' in labor and materials for which recovery is sought in this action.
In the instant case the District Court of Montezuma County, speaking through a judge other than the judge who heard case No. 4044, ruled that the decision in case No. 4044 was res judicata as to this action. The correctness of the trial court's ruling on this question is the only matter which is before us for review. In our opinion the trial court properly determined such question.
The law of this jurisdiction on such question is set forth at length in Newby v. Bock, 120 Colo. 454, 210 P.2d 985. As specified by the holding of our Supreme Court in the Newby case and in other decisions, there existed in both trial court actions an identity as to parties, an identity as to the pleaded capacities of the parties, an identity as to the subject matter, and an identity as to the claim for relief. The claim for labor and materials asserted in case No. 4299 was an entirely admissible claim in case No. 4044. In fact evidence in support of such claim was submitted by plaintiff in case No. 4044. The trial court's unappealed judgment in that case on such evidence, whether correct or incorrect, is now conclusive. Pomponio v. Larsen, 80 Colo. 318, 251 P. 534.
Judgment is affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.