Opinion
June 13, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Fred R. Rehmer, Aurora, for plaintiff-appellee.
Jarvis W. Seccombe, Dist. Atty., Coleman M. Connolly, Kathie L. Blackman, Deputy Dist. Attys., Denver, for defendants-appellants.
ENOCH, Judge.
Plaintiff-appellee initiated this action in the district court under C.R.C.P. 106(a)(4). Defendants-appellants allege, Nter alia, that the district court erred in denying defendants' motion to dismiss for the reason that plaintiff had an adequate and speedy remedy in the county court which plaintiff did not pursue prior to instituting this action in the district court. We agree with this contention.
The plaintiff was charged in the county court with a violation of the duty of the operator of a motor vehicle upon striking an unattended vehicle (1965 Perm.Supp., C.R.S.1963, 13--5--20). Plaintiff entered a plea of not guilty and the case was set for a jury trial. Over a period of about eight months, the case was set for trial three times and each time continued over plaintiff's objections. After the case was continued the third time, and without filing a motion in the county court for a dismissal, plaintiff filed this action in the district court, alleging that he had been denied the right to a speedy trial and that he had 'no plain, speedy and adequate remedy, other than this within action. . . .'
After hearing the testimony of the plaintiff and arguments of counsel, the district court held that the trial court had abused its discretion in continuing the trial over plaintiff's objection and that plaintiff's constitutional right to a speedy trial had been violated. On the basis of these findings, the court ordered the county court action dismissed.
The plaintiff presented no evidence to the district court, and there is no evidence in the transcript of the county court proceedings to show that plaintiff had 'no plain, speedy and adequate remedy.' The district court made no finding on this issue.
C.R.C.P. 106(a)(4) prescribes two requisites for the right to relief under this rule: (1) no plain, speedy and adequate remedy, and (2) no jurisdiction in the inferior tribunal or an abuse of its discretion. Both elements must be established by plaintiff to entitle him to relief under C.R.C.P. 106(a)(4). Therefore, it was error for the district court to have entered its judgment without making a determination supported by some evidence that plaintiff did not have a plain, speedy and adequate remedy.
As previously indicated, plaintiff filed no motion to dismiss the criminal proceedings in the county court before initiating this action. We were advised by counsel at oral argument that such a motion was filed in the county court about a month after this action was filed in the district court, that a hearing was held and that the motion was denied. The district court did not know at the time of its hearing, nor do we know, the contents of plaintiff's motion in the county court, the evidence, if any, presented at the hearing or the basis of the court's denial. Without this supplemental record, the district court could not determine, as it must, that plaintiff had 'no plain, speedy and adequate remedy' before the requested relief could be considered.
The judgment is reversed and remanded to the district court with directions to permit plaintiff to supplement the record by providing a transcript of the additional proceedings in the county court and to make further findings consistent with this opinion and as required by C.R.C.P. 106(a)(4) and for entry of an appropriate order thereon.
DWYER and PIERCE, JJ., concur.