Opinion
No. 24468.
Decided February 2, 1970.
Original proceeding seeking order in nature of mandamus to require district court to conduct hearing to determine amount of property that should be held in escrow account in bank. Rule to show cause issued.
Rule Discharged.
1. Appeal and Error — Mandamus — Hearing — District Court — Amount — Escrow — Agreement — Lack of Jurisdiction — Interpretation — Writ of Error. Where petitioner sought order in nature of mandamus to require district court to conduct hearing to determine amount of property that should be held in escrow account, and escrow agreement was not part of record in case in district court or Supreme Court; was not made pursuant to any stipulation in court; was entirely outside of any issue presented; and escrow holder was not party to litigation, held, under the circumstances, trial court was correct in its determination that it was without jurisdiction to interpret or enforce escrow agreement given to secure judgment pending determination on writ of error.
Original Proceeding.
Leslie A. Gross, for petitioner.
Gorsuch, Kirgis, Campbell, Walker and Grover, Charles E. Rhyne, for respondent Acacia Mutual Life Insurance Company.
This is an original proceeding in which the petitioner, Holt Chew, sought an order from this court in the nature of mandamus to require the Jefferson County district court to conduct a hearing to determine the amount of property that should be held in an escrow account in The First National Bank of Denver.
It was alleged in the petition that the escrow was to secure a judgment in the Jefferson County district court in favor of Acacia Mutual LIfe Insurance Company and against petitioner, Holt Chew. Writ of error to that judgment is pending in this court.
In response to the show cause order, we have been furnished copies of the escrow agreement. It appears therefrom that it is a contact between the parties which is not a part of the record in the case in the Jefferson county court or here; was not made pursuant to any stipulation in court; and is entirely outside of any issue presented in the court below or here. The First National Bank of Denver, the escrow holder, is not a party to the litigation between the parties.
If the parties, or one of them, desire to determine their rights under the contract, it appears that is a matter for separate litigation. The trial court was correct in its determination that it was without jurisdiction to interpret or enforce the contract.
The rule is discharged.
MR. JUSTICE PRINGLE and MR. JUSTICE KELLEY dissent.