Opinion
Rehearing Denied June 4, 1970.
Page 241
Mellman, Mellman & Thorn, Gerald Mellman, Denver, for plaintiffs in error.
Robert W. Hanson, Denver, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiffs in error were plaintiffs below and defendant in error was defendant below. Frank M. Gurtner died during the pendency of this action and his administrator was substituted as party defendant.
This case arose out of an automobile accident and was tried to a jury on the 9th and 10th of February, 1967. Plaintiffs were represented by other than their present counsel.
During the second day of the trial, plaintiff's counsel requested an extension of the recess period. After the recess, the attorneys for both sides returned to chambers and advised the court that the case had been settled for $1,200.00. The court had the attorneys state the settlement into the record, and then stated:
'Fine. The court will approve the stipulation and discharge the jury, and you gentlemen can call off your witnesses.'
The court then returned to the courtroom and advised the jury that the case had been settled. The parties were not present in chambers, but were present in the courtroom.
The jury was discharged. The record does not reveral that any further action was taken in the case until February 20, 1967, when plaintiffs by their present counsel filed a motion stating that any purported statement of settlement by former counsel before the court was made without the authority of the plaintiffs, and requested that the case be reset for trial.
The motion was set for hearing. The court heard the testimony of plaintiffs who both stated that they had been advised of the $1,200.00 offer but had refused same and had not authorized settlement of their case. They had consulted with their present attorney after leaving the courtroom on February 10th. Their former attorney was not called as a witness.
At the conclusion of the hearing the court determined that plaintiffs had given tacit approval of settlement and denied the motion to reset the case for trial. In order to clear the record for appeal, the court signed an order dismissing the above-entitled case with prejudice, conditioned upon defendant's depositing $1,200.00 in court.
The sole question presented for our review is whether the court erred in dismissing the case with prejudice, conditioned upon defendant depositing $1,200.00 in court. If the judgment had been entered at the time the jury was discharged we would have a different situation. However, the judgment was not entered until after the court had denied plaintiff's motion to reset the case for trial. It was error for the court to dismiss the case with prejudice under these circumstances at this point of time. The case was at issue pending disposition and the proposed settlement had not been reduced to judgment.
Accordingly, the judgment is reversed with directions that defendant's $1,200.00 be returned; that the case be reinstated and set for a jury trial; setting to be conditioned upon the court determining proper costs to be awarded to defendant occasioned by the discontinuance of the jury trial and the discharge of the jury and paid over to defendant or to the clerk of the trial court, as the court may direct, prior to setting; the amount of said costs to be at the discretion of the court, but not to include any costs incurred in this court.
DUFFORD and PIERCE, JJ., concur.