Opinion
April 6, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Victor F. Crepeau, Denver, for plaintiffs in error.
Thomas B. Masterson and Charles J. Onofrio, Denver, for defendant in error.
DUFFORD, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties are before us in their trial court positions and shall be referred to by their trial designations or by name.
This action was instituted to recover savings account funds and shares of stock which Stimac transferred to the defendant. The action was begun and was tried on the theory that the transfers of such funds and stock were procured through fraud and unlawful taking on the part of the defendant.
At the request of both parties, the case was tried to a jury. At the conclusion of all evidence, the jury returned a verdict in favor of the defendant, and judgment dismissing the complaint with prejudice was then entered.
In this appeal plaintiffs contend the jury verdict cannot stand because there was no evidence that the transfers were made to defendant in exchange for a valid consideration or in discharge of an implied contract for her services. They also assert that an action to set aside a conveyance is an equitable action and cannot be decided by a jury.
As stated, this action was brought to nullify the transfers to defendant on the theory of fraud and unlawful taking. The burden of proving the elements of those assertions rested with plaintiffs. Woodruff v. Clarke, 128 Colo. 387, 262 P.2d 737. The transfers to the defendant were completed, and there was no burden upon her to plead affirmatively and prove consideration or a contractual basis for them. The trial court properly restricted the determination of the case to the issues raised by the plaintiffs. Ginsberg v. Zagar, 126 Colo. 536, 251 P.2d 1080.
As to plaintiffs' other charge of error, the law is clear that an equitable action may be tried to a jury where all parties agree to such procedure. Young v. Colorado National Bank, 148 Colo. 104, 365 P.2d 701; Shuman v. Tuxhorn,Colo.App., 481 P.2d 741; Barlow v. Staples, Colo.App.,
There was no error, and the judgment is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.