KERR v. LINCOLN, 196 Colo. 472 (1978)

(586 P.2d 1330)

Robert Graham Kerr and William James Frackelton v. The Honorable Jerry Lincoln, Judge of the San Miguel County District Court in the Seventh Judicial District

No. 28357Supreme Court of Colorado.
Decided November 27, 1978.

Original proceeding in which petitioners seek relief in the nature of prohibition against an order of the respondent district court judge. Rule to show cause issued.

Rule Discharged

1. PRACTICE AND PROCEDURE — Consolidation and Bifurcation — Hearing — Rule — Discharged. In view of fact that respondent district judge has agreed that, upon reconsideration, the parties are entitled to a hearing as a prerequisite before any order regarding consolidation and bifurcation is considered, the rule to show cause — why his order, issued sua sponte, consolidating petitioners’ tort cases as to liability but bifurcating as to damages should not be vacated — is discharged.

Original Proceeding

Tom Goldsmith, for petitioners.

Robert C. Dawes, for respondent.

En Banc.

Per Curiam

[1] This is an original proceeding in which petitioners seek relief in the nature of prohibition against an order of the respondent district court judge. We ordered the respondent to show cause why this order consolidating petitioners’ tort cases as to liability but bifurcating as to damages should not be vacated.

Petitioners instituted separate actions in negligence against the defendant, the San Miguel Power Association. They sought damages for

Page 473

injuries allegedly suffered as a result of being electroshocked by defendant’s power lines. Without any motion being filed, without conducting a hearing, and without making any factual findings, the respondent issued an order consolidating the two cases for trial on the issue of liability and directed that, if liability is found, there be separate trials on damages.

In answer to our order to show cause, the respondent district judge has agreed that, upon reconsideration, the parties are entitled to a hearing as a prerequisite before any order regarding consolidation and bifurcation is considered. Respondent therefore has, in effect, vacated his earlier order.

We now regard the issues presented by the petitioners as moot, and accordingly, we discharge the rule.