Summary
holding that in the absence of a responsive pleading, "no final judgment should have been entered in the absence of a showing of record that plaintiff waived the right to file an amended complaint"
Summary of this case from DIA Brewing Co. v. MCE-DIA, LLCOpinion
No. 21364.
Decided January 30, 1967.
Action seeking injunction, damages and relief in the nature of mandamus to compel performance of alleged official duties. From dismissal of action and the entry of judgment "with prejudice," error was brought.
Reversed.
1. PLEADING — Motion to Dismiss — With Prejudice — Amended Complaint — Opportunity to File — Rule — Waiver — Dismissal — Appeal and Error. Where trial court granted motion to dismiss complaint, and over objection of counsel for plaintiff, entered judgment "with prejudice," and where no opportunity was given to file amended complaint notwithstanding provisions of R.C.P. Colo. 15(a), held, trial court erred; it could not enter judgment of dismissal until plaintiff had at least had opportunity to amend his complaint or had shown that he waived his right to file amended complaint and elected to stand upon allegations of complaint.
Error to the District Court of Jefferson County, Honorable George G. Priest, Judge.
David B. Richeson, John H. Williamson, for plaintiff in error.
Robinson and Curran, Conrad E. Gardner, Lyle E. Miller, Robert K. Wilson, for defendants in error.
Albert B. Passe filed a complaint against the defendants in error above named in which he sought an injunction against defendant Mitchell, as well as damages in the amount of $25,000, and relief against the other defendants in the nature of mandamus to compel performance by them of alleged official duties. By stipulation the claim for damages was withdrawn.
A motion to dismiss for failure to state a claim was filed by the defendants, and upon the hearing thereof the trial court granted the motion, dismissed the action, and, over objection of counsel for plaintiff, entered a judgment "with prejudice." No opportunity was given to file an amended complaint notwithstanding the provisions of R.C.P. Colo. 15(a), which provides in pertinent part:
"A party may amend his pleading once as a matter of course at any time before a responsive pleading is filed * * *."
No responsive pleading has been filed in the instant case, and no final judgment should have been entered in the absence of a showing of record that plaintiff waived the right to file an amended complaint, and elected to stand upon the allegations of the complaint to which the motion to dismiss was addressed.
In Sprott v. Roberts, 154 Colo. 252, 390 P.2d 465, a similar situation was presented and we there reversed the judgment of dismissal. From that opinion we quote the following:
"As we view it the trial court could not enter its judgment of dismissal until Michael had had at least an opportunity to amend his complaint."
The judgment is reversed and the cause remanded with directions to grant time within which an amended complaint may be filed.
MR. JUSTICE McWILLIAMS, MR. JUSTICE HODGES and MR. JUSTICE KELLEY concur.