No. 73-375.

524 P.2d 651 (1974)

In the Matter of the Assignment of CARLSON'S FOR MUSIC, INC., a Colorado corporation, Petitioner-Appellant, v. Joseph B. GOULD, Individually, and doing business as Enterprise Building, Respondent-Appellee.

Colorado Court of Appeals, Div. II.

Attorney(s) appearing for the Case

Hochstadt, Straw & Davis, P. C., Michael A. Davis, Denver, for petitioner-appellant.

Rodden & Woods, Richard T. Paynter, Jr., Denver, for respondent-appellee.

Not Selected for Official Publication.

RULAND, Judge.

Petitioner-appellant, Union Trust Company, (Union) appeals from a judgment dismissing a citation against respondent Joseph B. Gould. We dismiss the appeal.

On August 29, 1966, Carlson's for Music, Inc., made a voluntary assignment of its assets pursuant to the "Assignment-Benefit of Creditors" statute, C.R.S. 1963, 11-1-1 et seq., and Union was appointed as assignee. On October 25, 1966, Union caused Gould to be served with a citation to appear and show cause why he should not be held in contempt of court for allegedly disposing of assets under the jurisdiction of Union as assignee. On December 7, this citation was quashed for procedural defects.

A second citation was issued on January 13, 1967, and thereafter quashed on the grounds that the "Assignment-Benefit of Creditors" statute was unconstitutional. Union then appealed, and the Supreme Court held that the statute was constitutional. See In re Assignment of Carlson's for Music, Inc. v. Gould, 176 Colo. 172, 489 P.2d 1038. The case was remanded with directions to reinstate the citation for contempt and for further proceedings consistent with the views expressed in that opinion. The remand was issued on November 8, 1971.

On or about March 1, 1973, a hearing was scheduled by Union relative to the citation, and Gould was served with a subpoena duces tecum. Gould entered a special appearance by motion to vacate the subpoena, and the cause was heard on April 5, 1973.

By agreement of the parties, Gould was called to testify concerning his sale of merchandise allegedly owned by Carlson's for Music, Inc., disposition of the proceeds derived from this sale, and events subsequent to the sale. Following presentation of this testimony, Union requested that the court find Gould guilty of contempt and accountable for the proceeds derived from sale of the merchandise in question.

Written briefs were submitted, and thereafter the court entered findings of fact, conclusions of law, and order. The court found, inter alia, that the delay by Union in proceeding with the case following the Supreme Court remand was unreasonable, that Union should now be estopped to proceed, and that Union was guilty of laches.

In this appeal, Union contends, inter alia, that the court erred in finding that Union was guilty of laches because it contends Gould was not prejudiced by the delay. Whether the elements of the doctrine of laches are present so as to bar a party from pursuing legal proceedings is essentially a question of fact to be determined upon the evidence presented relative thereto. California Bond & Mortgage Co. v. Washburn, 94 Cal.App. 530, 271 P. 554. See also Loveland Camp No. 83 v. Woodmen Building & Benevolent Ass'n., 108 Colo. 297, 116 P.2d 195. Here Union, in effect, contends that the evidence fails to support the trial court's findings on this issue. It is therefore apparent that controverted issues of fact were involved in the hearing before the trial court and hence on this appeal.

The Colorado Rules of Civil Procedure govern the procedure applicable to proceedings under the "Assignment-Benefit of Creditors" statute. C.R.S.1963, 11-1-53. Where, as here, entry of final judgment is based upon resolution of controverted issues of fact, a motion for new trial or to alter or amend the judgment is a prerequisite to review. C.R.C.P. 59(f). Failure to file such motion requires dismissal of the appeal. See Helmick v. Consolidated Mutual Water Co., 150 Colo. 243, 372 P.2d 160.

The appeal is dismissed.

SILVERSTEIN, C.J., and ENOCH, J., concur.


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