Opinion
Rehearing Denied Dec. 10, 1974.
F. E. Dickerson and John T. Dugan, Max A. Wilson, Denver, for plaintiff-appellant.
Lynn W. Toedte, Denver, for defendants-appellees.
COYTE, Judge.
The opinion announced on September 4, 1974, is withdrawn and the following opinion issued in its stead.
Plaintiff filed suit to recover a personal judgment against Floyd Marks, district attorney of Adams County, and Fidelity Deposit Company of Maryland, surety on his bond. In his complaint, he sought to enforce a money judgment claimed to have been obtained by him in the county court of Adams County against Marks because of the failure of Marks to return certain merchandise which the court had ordered returned. The complaint also sounded in conversion. Defendants alleged that the complaint failed to state a claim for relief and also denied the validity of the purported judgment obtained in the county court proceeding. At trial, plaintiff's only witness was the Clerk of the County Court who testified that an exhibit introduced into evidence was the official file of the case in the county court. That exhibit was not originally transmitted to this court as certified, but was later procured. It consisted of the papers filed in the county court in connection with criminal charges filed against plaintiff wherein he pled Nol contendere to the charge of unlawful sale of fireworks. It also contained papers filed in connection with a petition for the return of the fireworks which petition the county court granted, but neither the sheriff nor district attorney complied with the order. Plaintiff then filed a petition to have judgment entered against 'plaintiff' (The People of the State of Colorado) and 'the sheriff of Adams County.' Next appears a minute order of the county court wherein, 'It is ordered that judgment entered against the District Attorney, Floyd Marks, as District Attorney of Adams County, in the amount of $469.40 and in favor of the Defendant.' It does not appear from the county court record that any pleading was filed in the county court or process served on Floyd Marks advising him that a judgment might be entered against him. After the introduction of this exhibit and without the introduction of any other evidence, plaintiff rested.
The trial court, on motion of defendants, dismissed plaintiff's complaint. It held that the county court had no jurisdiction to enter a judgment against Marks, that the judgment was null and void, and that, since there was no other evidence to prove the allegations of plaintiff's complaint, it should be dismissed. We affirm.
Plaintiff contends that since there was no appeal from the county court proceedings there is a valid judgment against Floyd Marks which cannot be collaterally attacked. The record does not reveal that the county court had jurisdiction to enter a judgment aggainst Floyd Marks. Plaintiff was a defendant in a criminal proceeding brought by 'The People of the State of Colorado.' There was no pending suit against Floyd Marks and no proceeding even to request a judgment against Floyd Marks.
Plaintiff may have been able to pursue his action in conversion against defendant by the presentation of evidence in the district court proceeding, but this he did not do. The record of proceedings in the county court introduced into evidence in the district court does not support the entry of a judgment in the district court.
Judgment affirmed.
RULAND and Van CISE, JJ., concur.