Colorado § 38-1-104 - Trial - amendments - rules.

§ 38-1-104. Trial - amendments - rules.

No cause shall be heard earlier than thirty days after service upon the defendant or upon due publication as provided in section 38-1-103. Any number of separate parcels of property situate in the same county may be included in one petition, and the compensation for each shall be assessed separately by the same or different commissions or juries, as the court may direct. Amendment to the petition or to any paper or record in the cause may be permitted whenever necessary to a fair trial and final determination of the questions involved. Should it become necessary at any stage of the proceeding to bring a new party before the court, the court has the power to make such rule or order in relation thereto as may be deemed reasonable and proper, and also has the power to make all necessary rules and orders for notice to parties of the pendency of the proceeding and to issue all process necessary to the execution of orders and judgments as they may be entered.

Source: G.L. § 1062. G.S. C. § 241. R.S. 08: § 2419. C.L. § 6315. CSA: C. 61, § 5. CRS 53: § 50-1-5. L. 55: p. 370, § 3. C.R.S. 1963: § 50-1-5. L. 85: Entire section amended, p. 1194, § 2, effective June 6.

ANNOTATION

Provisions relating to amendment of petition to be accorded liberal interpretation. Lebanon Mining Co. v. Consol. Republican Mining Co., 6 Colo. 371 (1882); Archibald v. Thompson, 2 Colo. 388 (1892); Sw. Land Co. v. Hickory Jackson Ditch Co., 18 Colo. 489, 33 P. 275 (1893); Jordan v. Greig, 33 Colo. 360, 80 P. 1045 (1905); Goodman v. City of Ft. Collins, 164 F. 970 (8th Cir. 1908).

Applicability of section. The provisions of this section allowing amendment of a petition are as applicable to the correction of errors and omissions in the statement of jurisdictional facts as to the correction of other defects. Lebanon Mining Co. v. Consol. Republican Mining Co., 6 Colo. 371 (1882); Archibald v. Thompson, 2 Colo. 388 (1892); Sw. Land Co. v. Hickery Jackson Ditch Co., 18 Colo. 489, 33 P. 275 (1893); Jordan v. Greig, 33 Colo. 360, 80 P. 1045 (1905); Goodman v. City of Ft. Collins, 164 F. 970 (8th Cir. 1908).

General statutory provisions governing amendments to pleadings are inapplicable to the eminent domain act, which prescribes a complete system of procedure for the taking or damaging of private property. Trippe v. Overacker, 7 Colo. 72, 1 P. 695 (1883); Knoth v. Barclay, 8 Colo. 300, 6 P. 924 (1885); Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889); Kindel v. Le Bert, 23 Colo. 385, 48 P. 641, 58 Am. St. R. 234 (1897).

Matter of amendments is discretionary with the court. Knoth v. Barclay, 8 Colo. 300, 6 P. 924 (1885); Goodman v. City of Ft. Collins, 164 F. 970 (8th Cir. 1908).

Amendment power unaffected by parties' failure to appear. The power of the court to allow an amendment of a petition is not affected in any wise by the failure of parties to appear because the personal service of the summons brought them under the jurisdiction of the court for all purposes of the proceedings as fully as a voluntary appearance could have done. Goodman v. City of Ft. Collins, 164 F. 970 (8th Cir. 1908).

Defective condemnation proceedings may be renewed, and the petition and other papers may be amended whenever necessary to a fair trial and final determination of the controversy. Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889).

Jurisdiction is not lost by amendment of petition because an amendment is not the institution of a new proceeding, and it creates no occasion for the issuance of a new summons or like process. Goodman v. City of Ft. Collins, 164 F. 970 (8th Cir. 1908).

Trial court's refusal to permit amendment deemed no abuse of discretion. If the condemnor is fully aware of the nature and value of the property it seeks to take, it may not wait until after evidence of value has been heard and, because of anticipated dissatisfaction with the amount of the award, modify its position where the property owners have changed their position in good faith and reliance on the condemnor's representations; since the trial court's refusal to permit an amendment was based upon consideration of fairness to the parties, the trial court did not abuse its discretion in denying to condemnor's motion to amend. Evergreen Fire Prot. Dist. v. Huckeby, 626 P.2d 744 (Colo. App. 1981).

Applied in Colo. E.R.R. v. Chicago, B. & Q. Ry., 141 F. 898 (8th Cir. 1905); Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906); Tegeler v. Schneider, 49 Colo. 574, 114 P. 288 (1911); Cucharas Sanitation & Water v. Mounsey, 805 P.2d 1177 (Colo. App. 1990).