Passe v. Mitchell ( 1967 )

Opinion by

Mr. Chief Justice Moore.

Albert B. Passe filed a complaint against the defendants in error above named in which he sought an injunction against defendant Mitchell, as well as damages in the amount of $25,000, and relief against the other defendants in the nature of mandamus to compel performance by them of alleged official duties. By stipulation the claim for damages was withdrawn.

A motion to dismiss for failure to state a claim was filed by the defendants, and upon the hearing thereof the trial court granted the motion, dismissed the action, and, over objection of counsel for plaintiff, entered a judgment “with prejudice.” No opportunity was given to file an amended complaint notwithstanding the provisions of R.C.P. Colo. 15(a), which provides in pertinent part:

“A party may amend his pleading once as a matter of course at any time before a responsive pleading is filed * * *.”

No responsive pleading has been filed in the instant case, and no final judgment should have been entered in the absence of a showing of record that plaintiff waived the right to file an amended complaint, and elected to stand upon the allegations of the complaint to which the motion to dismiss was addressed.

In Sprott v. Roberts, 154 Colo. 252, 390 P.2d 465, a similar situation was presented and we there reversed the judgment of dismissal. From that opinion we quote the following:

“As we view it the trial court could not enter its judgment of dismissal until Michael had had at least an opportunity to amend his complaint.”

The judgment is reversed and the cause remanded with directions to grant time within which an amended complaint may be filed.

Mr. Justice McWilliams, Mr. Justice Hodges and Mr. Justice Kelley concur.