Opinion
No. 72-389
Decided June 19, 1973. Rehearing denied July 17, 1973.
Water district brought declaratory judgment action to determine whether or not fire protection district was required to pay certain costs relative to fire hydrants located within the boundaries of both political entities. Trial court granted defendant's motion to dismiss for failure to state a claim, and plaintiff appealed.
Reversed
1. JUDGMENT — Declaratory — Complaint Stated — Justiciable Controversy — Error — Dismiss Action. Where water district filed complaint for a declaratory judgment to determine whether fire protection district was required to pay for certain costs incurred with respect to fire hydrants located within boundaries of both political entities, the complaint set forth a justiciable controversy, and it was improper for the trial court to dismiss the action without entering an order declaring the parties' rights.
Appeal from the District Court of Jefferson County, Honorable Christian D. Stoner, Judge.
Robinson-Litvak, P.C., William Hedges Robinson, Jr., Stephan A. Tisdel, for plaintiff-appellant.
Myers and Woodford, L. Thomas Woodford, for defendant-appellee.
Division I.
Plaintiff, the Alameda Water and Sanitation District, filed this action seeking a declaratory judgment as to whether or not defendant, the Bancroft Fire Protection District, is required to pay certain costs currently being incurred by plaintiff for water supplied to, and repairs and maintenance on, certain fire hydrants in an area lying within the boundaries of both of these political entities. By its complaint, plaintiff also sought damages for defendant's refusal to pay for similar expenses previously incurred. Defendant filed only a motion to dismiss for failure to state a claim, which motion was granted by the court without explanation or comment. Plaintiff appeals. We reverse.
[1] By its complaint, plaintiff set forth a justiciable controversy as to which of the parties has the obligation to pay for these services which is a proper subject for declaratory judgment. This being so, it was improper for the court to dismiss the action at this juncture of the proceedings. The recognized practice under such circumstances is for the court to allow completion of the pleadings, and, upon consideration of proved or stipulated facts, enter an order declaring the parties' rights. Bennett's, Inc. v. Krogh, 115 Colo. 18, 168 P.2d 554; See also Armstrong v. Carman Distributing Co., 108 Colo. 223, 115 P.2d 386. Without such and order this court has nothing to review, and therefore, this matter is reversed and remanded for further proceedings not inconsistent with this opinion.
Judgment reversed and remanded with directions.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.