Opinion
June 19, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 537
Howard I. Rosenberg, Michael A. Wolff, Michael L. Gilbert, Denver, for plaintiffs-appellants.
Isaacson, Rosenbaum, Spiegleman & Friedman, P.C., Sheldon E. Friedman, Denver, for defendants-appellees.
PIERCE, Judge.
Plaintiffs, residents of Denver, brought this action against defendants who own and operate a meat rendering plant, contending that defendants' plant was a nuisance. Plaintiffs sought abatement of the nuisance, and damages for injury to life and property. Together with the complaint, plaintiffs filed a motion for a preliminary injunction seeking to enjoin defendants' operations pending outcome of the suit. After a hearing, the trial court denied this motion and dismissed plaintiffs' complaint, concluding that there had been no showing of nuisance. Plaintiffs bring this appeal, contending that the court erred in two particulars. We agree on both counts, and reverse.
Plaintiffs' first contention is that the court erred in dismissing the complaint after a hearing on the motion for preliminary injunction, since, at such a hearing, all evidence would not be before the court. We agree. Plaintiffs had no obligation to present their entire case at this hearing. Allen v. Denver, 142 Colo. 487, 351 P.2d 390. Therefore, the result of the hearing on preliminary injunction should not have precluded further proceedings.
Defendants, contending that the hearing was, in fact, a trial on the merits and that the trial court had adequate evidence before it from which it could conclude that no showing of nuisance could be made, assert that the regularity of the proceedings must be presumed to be correct since plaintiffs have refused to provide a transcript on appeal. Burton v. Garner, 150 Colo. 529, 374 P.2d 707. We note, however, that the court's minute order designates the matter as a hearing on preliminary injunction. Thus, applying the rule in Burton, we must presume that the denial of the preliminary injunction was proper. However, since plaintiffs had no obligation to present their entire case at that hearing, there could exist no evidentiary posture which would justify dismissal of the action at that point in the proceedings. Therefore, the absence of a transcript is not determinative, and we conclude that it was error to dismiss the complaint.
Plaintiffs' second contention is that they properly plead a case for damages and properly requested a trial to a jury on that claim, and that, even if the court could properly dismiss their equitable claim, it could not dismiss their legal claim. Again we agree. Our examination of the complaint convinces us that both legal and equitable relief were sought and that neither claim was dependent on the other, as claimed by defendants. Recovery was sought for damages for both past and future injuries. This being so, plaintiffs' jury demand was not dependent upon the disposition by the court of the equitable claims. See Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804. Therefore, since determination of the issues involved in a nuisance claim is ultimately a question of fact, and since the pleadings indicate disputed facts in this case, further proceedings are in order. Northwest Water Corp. v. Pennetta, 29 Colo.App. 1, 479 P.2d 398.
Judgment reversed and remanded for a new trial.
ENOCH and SMITH, JJ., concur.