Opinion
Rehearing Denied April 3, 1973.
Alex S. Keller, Justin D. Hannen, Denver, for defendants-appellees Karoline F. Munz and Mary Munz.
Page 1284
Robert W. Smedley, Littleton, for plaintiff-appellant.
Max P. Zall, City Atty., Keith Peterson, Asst. City Atty., Denver, for defendant-appellee Charles L. Temple, Manager of Revenue and ex-officio Treasurer of City and County of Denver.
PIERCE, Judge.
Plaintiff, Administratrix of the Estate of Walter Luthi (Decedent), is seeking to redeem property from a tax sale which was held while decedent was still alive. Citing C.R.S.1963, 137--10--4, plaintiff claims that on the date of the recording of the tax deed, decedent was mentally incompetent, and thus, was entitled to redeem the property within nine years thereafter. It is undisputed that plaintiff within that nine year period tendered to the treasurer the necessary amount of money to pay back taxes, interests and costs, and that the treasurer refused to issue a certificate of redemption. Thereafter, plaintiff filed this action in the district court.
In its pre-trial order, the court made two rulings which are the subject of this appeal. First, it denied plaintiff's jury demand, on the grounds that the action was equitable in nature since it sought to annul a deed. Second, the trial court noted that, as the result of a fracas, two policemen had initiated a proceeding in the Denver County Court on January 4, 1960, to determine decedent's competency as of that date. Upon the recommendation of a medical commission, the decedent was discharged from this proceeding as sane. The court considered this discharge to be res judicata with regard to decedent's mental competency on January 4, 1960, and any date prior thereto. Because of this determination, plaintiff's evidence as to decedent's competency was limited only to that period between the discharge, January 4, 1960, and the execution and delivery of the tax deed, December 30, 1960.
At trial to the court, conflicting evidence was offered by both parties regarding decedent's competence. At the conclusion of the trial, the court made a finding that decedent was competent on the date of the execution and delivery of the tax deed, and therefore, dismissed plaintiff's complaint. Plaintiff appeals. We affirm.
Initially, plaintiff claims that this is an action to recover real property, and that, therefore, pursuant to the terms of C.R.C.P. 38(a), plaintiff is entitled to a jury trial. We disagree.
It has been established in Colorado that there is no right to a jury trial, even where the action is to recover real property, when the action is equitable in nature. Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804. See also Miller v. District Court, 154 Colo. 125, 338 P.2d 763. It has also been held that the remedy in a proceeding against a tax certificate holder to establish a right of redemption, is equitable in nature. Statton v. People ex rel. Burr, 18 Colo.App. 85, 70 P. 157. Therefore, the trial court did not err in denying a jury trial.
The question then becomes one of determining whether the court's refusal to admit evidence of decedent's mental condition prior to the January 4, 1960, hearing, unduly prejudiced plaintiff's efforts to prove decedent's disability as of the date of recording the deed.
It has previously been held in Colorado, in the context of determining competency to make a will, that prior adjudications as to competency are not to be considered conclusive in subsequent hearings, but rather are to be considered as evidentiary only. Beardshear v. Beardshear, 163 Colo. 333, 432 P.2d 235; Martin v. Reid, 106 Colo. 69, 101 P.2d 25. We adopt the above rule with regard to the type of hearing before us. As noted above, the prior hearing dealt only with one incident. There is nothing in the record before us or the record before the district court to indicate how extensive an inquiry the medical commission made. A court should take care not to exclude any relevant evidence of competency, including evidence of mental decline and of cyclical changes undergone by the alleged incompetent. In such a proceeding, subtle changes in the issues involved, can alter the relevance of old and new evidence. See Manello v. Bornstine, 44 Wash.2d 769, 270 P.2d 1059. The question then becomes one of determining whether this error was prejudicial. We conclude that it was not. Evidence established that decedent's mental competency, when compared to the years affected by the prior adjudication, did not change significantly during the year 1960. Therefore, viewing the prior result as evidence only, rather than as a conclusively binding judgment, the trial court would most certainly conclude, as it had previously, that decedent was competent on December 30, 1960. The trial court's order indicates that the court was convinced by the testimony of a psychiatrist who stated that while decedent was unquestionably eccentric, he was not incompetent on December 30, 1960. Thus, even perceiving error, we consider it to be harmless inasmuch as reconsideration of this case on this evidence at the trial level would not arrive at a different result that could be upheld. Allen v. Swadley, 46 Colo. 544, 105 P. 1097.
Judgment affirmed.
COYTE and SMITH, JJ., concur.