Heginbotham v. Webster

55 Colo. 111

• Court: Supreme Court of Colorado
• Decided: April 15, 1913
• Docket: No. 8015
• Status: Published

Opinion

Mr. Justice Gabbert

delivered the opinion of the court:

Plaintiff in error being dissatisfied with the judgment of the court of appeals, has brought the case here for review. In this court he has filed an additional abstract of record, and brief in support of the errors assigned to the judgment rendered by the court of appeals. The defendants in error have filed a motion to strike this abstract and brief, based upon the ground that, thereby questions are sought to be presented to this court which were not urged in the court of appeals.

We may concede the general rule to be, that questions not brought to the attention of the court of appeals, either by way of argument or otherwise, should not be considered by this court when a case is brought here from that tribunal. But a motion to strike a brief or an abstract, filed by a plaintiff in error, is not the proper way to raise that question. "Whether or not plaintiff in error has attempted, in either or both of the ways indicated, to raise new questions here can only be determined by a consideration of the case upon its merits, as presented to the court of appeals. The proper way, therefore, for defendants in error to present the question which they have attempted to raise and have determined by their motion to strike, is to call the attention of this court in their brief in answer to the alleged errors assigned and argued by plaintiff in error to the fact, if it be a fact, that plaintiff in error is at" tempting to have tbe case decided here upon some point to which the attention of the court of appeals was not directed.

The motion to strike is denied. ¡

Decision en banc. '

Mr. Justice Hill not participating. '■ .<