ROGERS v. PUBLIC SERVICE CO., 107 Colo. 387 (1941)

113 P.2d 869

ROGERS v. PUBLIC SERVICE COMPANY OF COLORADO ET AL.

No. 14,743.Supreme Court of Colorado.
Decided March 31, 1941. Rehearing denied May 26, 1941.

On motion to dismiss writ of error.

Writ Dismissed.

1. APPEAL AND ERROR — Motions to Dismiss. Where it appears from the record that the judgment of which a review is sought was entered more than a year prior to the filing of an application for a review, a motion to dismiss will be granted.

2. PLEADING — Limitation of Actions — Appeal and Error. Where the six-year statute of limitations has run against any cause of action attempted to be alleged in a complaint, there is no error in the refusal of the trial court to permit the filing of an amended complaint relative thereto.

Error to the District Court of the City and County of Denver, Hon. Henry S. Lindsley, Judge.

Mr. HARRY C. GREEN, Mr. THOMAS RYAN, for plaintiff in error.

Messrs. TWITCHELL, CLARK ECKLEY, Mr. HENRY H. CLARK, Messrs. LEE, SHAW McCREERY, for defendants in error.In Department.

MR. JUSTICE BAKKE delivered the opinion of the court.

WHILE this matter is technically not at issue, because only plaintiff in error’s briefs have been filed, we have concluded to dispose of it on the motion to dismiss filed on behalf of the respective defendants in error. The

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court on its own motion set the matter down for oral argument on February 17, 1941, and the merits of the case were sufficiently discussed, particularly by counsel for plaintiff in error, to justify our consideration of the same in connection with the motion to dismiss, and in that behalf we have read the entire record herein.

[1] The motion to dismiss must of necessity be granted as to the two defendants in error who are members of the medical profession because the record discloses, as the motions to dismiss as to them properly point out, that judgments in their favor were entered below more than a year preceding the application for the writ of error here (our Rule 18).

[2] As to the balance of the defendants in error it appears that the six-year statute of limitations had run on any alleged cause of action against them, and the attempt to avoid that statute by a second amended complaint fails completely, and there was no error in refusing permission to file it.

Accordingly the motion to dismiss is granted as to all defendants in error.

MR. CHIEF JUSTICE FRANCIS E. BOUCK and MR. JUSTICE HILLIARD concur.

MR. JUSTICE OTTO BOCK not participating.

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