Opinion
No. 15,662.
Decided June 9, 1947.
An action to recover broker's commission on a contract for the sale of real estate. Judgment of dismissal.
Reversed.
1. APPEAL AND ERROR — Insufficient Abstract — Practice and Procedure. If in the opinion of counsel for a defendant in error, the prepared abstract is so deficient as to require an examination of the record to ascertain the facts, it should, on motion, be corrected by the filing of a supplemental abstract.
2. Parties — Practice and Procedure. If a defendant in error believes an action is not brought in the name of the real party in interest, he may move for a substitution of the proper party; or, if the evidence discloses a defect in parties, the court can then enter the appropriate order.
Error to the District Court of Bent County, Hon. John L. East, Judge.
Mr. C. E. SYDNER, Mr. A. C. JOHNSON, for plaintiff in error.
Mr. WILLARD J. ALLEN, for defendant in error.
THESE parties appear here in the same order as in the trial court and are hereinafter referred to by name.
Pruett sued Marlman for a commission of approximately $1,450 on a contract for sale of real estate. Marlman's motion to dismiss, because suit had not been brought in the name of the real party in interest, was sustained. Resolution of the correctness of that holding disposes of Pruett's three specifications.
[1, 2] The contract recites that Marlman "hereby appoints and constitutes Pruett-Thaxton of Las Animas, Colorado, a duly licensed real estate broker," as her agent, and is signed "Pruett Thaxton by J. C. Pruett licensed broker." The complaint alleges that Pruett was and is a licensed real estate broker and E. A. Thaxton a duly licensed real estate salesman in his employ. The answer alleges that the contract was made with "a co-partnership comprised of J. C. Pruett and E. A. Thaxton." No other pertinent facts concerning the party plaintiff are disclosed by the abstract. Pruett's brief refers to a certain motion filed by Marlman and "interim orders of the court," and Marlman's brief contains ten references to the "original record." Counsel for Pruett explain why they have omitted certain records from their abstract. If in the opinion of counsel for Marlman this abstract was so defective as to require such an exhaustive examination of the original record as indicated by ten references thereto, it should have been corrected by them by motion or supplement. For aught that appears this cause is brought in the name of the real party in interest. If Marlman thinks not she may move to make Thaxton a party. Otherwise if the evidence discloses a defect of parties the court can then enter the appropriate order.
The judgment is reversed and the cause remanded with directions to reinstate the action for further proceedings in harmony herewith.
MR. JUSTICE JACKSON and MR. JUSTICE LUXFORD concur.