Opinion
White & Steele, R. Eric Peterson, Denver, for plaintiff in error.
Robinson & Henderson, Jerry R. Dunn, Denver, for defendants in error Donald L. Newman.
ENOCH, 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 authority vested in the Supreme Court.
Plaintiff in error was defendant below and is referred to herein as Hanover. Defendants in error were plaintiffs below and are referred to herein as Newman and Akins or plaintiffs.
Initially Newman obtained a judgment against Akins in the amount of $2,904.10 for damage arising from an automobile accident in which Akins' car struck Newman's car. Hanover was not involved in this action. After obtaining the judgment, Newman served a Writ of Garnishment on Hanover. Hanover denied any coverage of Akins. Newman filed a traverse of garnishee's answer and a hearing was held. At the conclusion, the trial court entered judgment against Hanover for $2,904.10, supported by findings from the evidence that the insurance policy in question did in fact give Akins coverage and it was Hanover's mistake in issuance of the policy that Akins was not properly named in the renewed policy for which she had paid the premium.
The reporter's transcript of the testimony was stricken by the trial court so we do not have any of the evidence before this court. We must therefore presume that the trial court's findings and judgment are supported by the evidence. Bonham v. Aurora, 133 Colo. 276, 294 P.2d 267.
Hanover now on appeal concedes that the evidence is adequate to support the judgment, but argues that the pleadings are insufficient. The error alleged is that the trial court should not have admitted parol evidence of mistake to alter the terms of the policy where the pleadings do not raise any issue of fraud or mistake.
Though errors in pleadings may in some cases be reviewed without the reporter's transcript, we do not find the record before us supporting Hanover's contentions. The question of whether mistake or fraud must be set forth with particularity in a traverse of a garnishee's answer is not properly before this court. The motion for new trial did not raise this pleading issue and it was not ruled on by the trial court. The motion for new trial raised only two questions, the admissibility of certain evidence to alter the terms of the contract and the sufficiency of the evidence to support the judgment. It is the well established rule in Colorado that under R.C.P. Colo. 59(f) only questions presented in a motion for new trial will be considered on review. Platte Valley Elevators Co. v. Gebauer, 127 Colo. 356, 256 P.2d 903.
The judgment of the trial court is accordingly affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.