The duty of the court is to determine whether an issue of fact is presented, not to try the issue." The subject is discussed in Gordon v. Brotherhood, 109 Colo. 347, 125 P.2d 140. In the Eastenes-Adams case, as is further seen, defendants did not rely alone on their motion to dismiss, as here, but filed a general demurrer as well. The trial court there denied the motion, but sustained the demurrer.
The duty of the court is to determine whether an issue of fact is presented, not to try that issue." See, also, Gordon v. Brotherhood, 109 Colo. 347, 125 P.2d 140. Thus, we are of the opinion that the district court erred in striking from the replication the portions thereof challenged as being sham, and in dismissing the action.
Generally, a trial court may not dismiss an action when neither party has sought dismissal and there has been no notice or hearing on whether there exists a justifiable cause for dismissal. In Gordon v. Brotherhood of Locomotive Firemen Enginemen, 109 Colo. 347, 125 P.2d 140 (1942), the court held that the trial court erred in sua sponte dismissing a complaint. In so ruling the court stated: