See 7C C. Wright, A. Miller M.K. Kane, Federal Practice and Procedure § 1914 (3d ed. 2007) (even the lack of a formal motion to intervene may be overlooked in compelling circumstances); see also Am. Nat'l Bank Trust Co. v. Bailey, 750 F.2d 577, 582 (7th Cir. 1984) (party's failure to file a formal motion to intervene before it files a counterclaim would not necessarily be fatal to its status as an intervenor); Spring Constr. Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980) (where a party fails to strictly comply with the requirements of Rule 24(c), the proper approach is to disregard non-prejudicial defects); Shores v. Hendy Realization Co., 133 F.2d 738, 742 (9th Cir. 1943) (where petition fully stated the grounds and facts upon which relief was asked, the failure to fully comply with procedure was a technicality that did not result in the invasion of a substantial right). In addition, we conclude that Capitol Industrial Bank v. Strain, 166 Colo. 55, 442 P.2d 187 (1968), upon which TT relies, is distinguishable. There, the intervenor filed a motion to intervene, but no pleading.
Nat'l Bank & Trust Co. v. Bailey, 750 F.2d 577, 582 (7th Cir.1984) (party's failure to file a formal motion to intervene before it files a counterclaim would not necessarily be fatal to its status as an intervenor); Spring Constr. Co. v. Harris, 614 F.2d 374, 377 (4th Cir.1980) (where a party fails to strictly comply with the requirements of Rule 24(c), the proper approach is to disregard non-prejudicial defects); Shores v. Hendy Realization Co., 133 F.2d 738, 742 (9th Cir.1943) (where petition fully stated the grounds and facts upon which relief was asked, the failure to fully comply with procedure was a technicality that did not result in the invasion of a substantial right). In addition, we conclude that Capitol Industrial Bank v. Strain, 166 Colo. 55, 442 P.2d 187 (1968), upon which T & T relies, is distinguishable. There, the intervenor filed a motion to intervene, but no pleading.
C.R.C.P. 24(c) (emphasis added). As we said in Capitol Industrial Bank v. Strain, 166 Colo. 55, 58, 442 P.2d 187, 188 (1968): "A motion is not a pleading.
People v. Anderson , 828 P.2d 228, 231 (Colo. 1992) (quoting Capitol Indus. Bank v. Strain , 166 Colo. 55, 58, 442 P.2d 187, 188 (1968) ).¶ 19 Indeed, C.R.C.P. 7(a) identifies the pleadings in an action as the complaint and answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint and answer, and a reply to an affirmative defense.
Also, in light of the fact that father did not object at the time, we cannot say that stepfather's failure to file a pleading with his motion compels reversal. See C.R.C.P. 24(c); cf. Capitol Industrial Bank v. Strain, 166 Colo. 55, 442 P.2d 187 (1968) (parties have a right to rely on C.R.C.P. 24(c) as written, and it is the duty of trial courts to enforce rule whenever a party timely objects). Nor do we perceive any error or abuse of discretion with respect to the order entered by the fourth judge allowing a continuing limited intervention.
Moreover, litigants have a right to rely upon the Rules of Civil Procedure as written, and it is the duty of the courts to enforce them when timely objections are made in reliance on the clear and unambiguous language of the rules. Capitol Industrial Bank v. Strain, 166 Colo. 55, 442 P.2d 187 (1968). Prejudice to lessees is apparent by virtue of the trial court's treatment of the jury verdict, in this case, as a binding common law verdict, rather than a nonbinding advisory verdict.
A day or two after the payment, Capitol served a writ of garnishment on 1450 Corporation which answered that it was not indebted to Strain. Capitol traversed the answer and, after various proceedings, including an appeal to the Supreme Court, (Capitol Industrial Bank v. Strain, 166 Colo. 55, 442 P.2d 187) which are not material here, a pretrial conference was held. The pretrial order set forth, as issues of fact, (1) whether the assignment was an assignment of the contract or security for a loan to Strain; and (2) if security for a loan, whether any amount was owing to Strain, either because the transaction was usurious or otherwise.
In this case, however, other considerations are present. In filing his appeal to the Tax Court, the plaintiff was entitled to rely upon the court's procedural rules as written. Capital Industrial Bank v. Strain, 166 Colo 55, 442 P.2d 187 (1968). The Oregon Supreme Court and this court have often held a tax administrator estopped from enforcing a statute because of his incorrect advice to or incorrect instruction of a taxpayer through inadvertence or error.