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Dillinger v. North Sterling Irrigation District , 135 Colo. 100 ( 1957 )


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  • 308 P.2d 608 (1957)

    Harold DILLINGER and Lloyd Dillinger, Plaintiffs in Error,
    v.
    The NORTH STERLING IRRIGATION DISTRICT, Defendant in Error.

    No. 18008.

    Supreme Court of Colorado, In Department.

    March 18, 1957.

    *609 Charles S. Vigil, Denver, for plaintiffs in error.

    Kreager & Sublett, Graydon F. Dowis, Jr., Sterling, for defendant in error.

    KNAUSS, Justice.

    Plaintiffs in error seek reversal of a judgment of dismissal in an action brought by them against defendant in error to recover from the latter the reasonable value of the use and occupancy of certain lands which the complaint alleged were owned by plaintiffs and which defendant occupied.

    Defendant filed a motion to dismiss the complaint "for the reason that same fails to state a claim upon which relief can be granted." This motion was sustained and from the judgment of dismissal plaintiffs bring the case here on writ of error.

    The sole question presented is whether the complaint states a claim upon which relief could be granted. Clearly it does.

    In passing on a motion to dismiss a complaint for failure to state a claim, the court must consider only those matters stated within the four corners thereof. Where a plaintiff in his complaint states a case entitling him to some relief, a motion to dismiss the action should not be granted. Stapp v. Carb-Ice Corp., 122 Colo. 526, 224 P.2d 935. In the instant case the trial court went beyond the allegations of the complaint and took into consideration the record and pleadings in two independent actions theretofore pending in the trial court and later decided in this court, viz.: Dillinger v. North Sterling Irrigation District, 129 Colo. 17, 266 P.2d 776 and Dillinger v. North Sterling Irrigation District, Colo., 308 P.2d 606.

    It is fundamental that pleas in bar must be specially pleaded. As we read the complaint it states a claim and the trial court erred in dismissing the action.

    The judgment is reversed and the cause remanded with direction that it be vacated and further proceedings had in accordance with the Rules of Civil Procedure.

    MOORE, C. J., and SUTTON and DAY, JJ., concur.