1. TRESPASS — Allegedly Committed — By Decedent — Heirs — Not Liable. Where trespass action had accrued against decedent during his lifetime, the heirs of decedent are not liable, neither at common law nor under the statutes, for the trespass allegedly committed by decedent.
Opinion by JUDGE DWYER.
Plaintiffs, Mary M. Mills and Mary M. Clark, have appealed a judgment dismissing their complaint against the defendants, O. L. Saunders, Addie Belle Gilliland, and Curtis Saunders. These defendants-appellees are the children and heirs-at-law of F. C. Saunders, deceased.
This action was commenced during the lifetime of F. C. Saunders. In the complaint filed March 31, 1964, plaintiffs alleged that F. C. Saunders had permitted his cattle to trespass upon the land of the plaintiffs causing damages in the sum of $8,605.
F. C. Saunders died November 18, 1964, and his son, O. L. Saunders, was appointed administrator of his estate. On February 10, 1965, the court entered an order in the trespass case substituting the administrator of the estate of F. C. Saunders as party defendant.
In 1966, the plaintiffs filed a claim for $8,605 against the estate of F. C. Saunders based upon the same claim asserted in the trespass case and also filed objections to the closing of the estate on the grounds that the trespass action was still pending. Their claim was disallowed because the time for filing claims against the estate had expired. On January 6, 1967, the court ordered the estate closed and discharged the administrator. Plaintiffs took no appeal from these orders entered in the probate proceedings.
The trespass action in which O. L. Saunders as administrator had been substituted for the deceased defendant, F. C. Saunders, was never tried. In 1968, plaintiffs filed a new complaint in the trespass action and alleged that defendants, O. L. Saunders, Addie Belle Gilliland, and Curtis Saunders, as the heirs of F. C. Saunders, were liable for the actions of their father in allowing his livestock to trespass upon their land. A summons was served upon defendants, and they filed motions to dismiss. The court dismissed the complaint for the reason that it failed to state a claim against the defendants upon which relief could be granted.
[1] On this appeal plaintiffs contend that they have a right to maintain their trespass claim, which had accrued against F. C. Saunders in his lifetime, against the defendants personally. Plaintiffs' theory is that the defendants as heirs of F. C. Saunders are liable for the trespass allegedly committed by F. C. Saunders. No such cause of action or claim for relief exists under the common law or under the statutes of this state.
[2] Plaintiffs further contend that they have a right to continue the original action after the death of F. C. Saunders against the defendants who are his heirs. The survival statute, C.R.S. 1963, 153-1-9, provides for the survival of actions of the type herein involved, and it also provides that a pending action, which survives the death of a litigant, may be continued by or against his personal representative. C.R.C.P. 25(a)(1) provides that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. In the instant case, the "proper party" was O. L. Saunders as the administrator of the decedent defendant's estate. The statute, C.R.S. 1963, 153-1-9, does not authorize the continuance of plaintiffs' action against the heirs of F. C. Saunders after his death.
For the reasons stated, the trial court properly dismissed plaintiffs' claim against the defendants and properly refused to continue the original action against them.
[3] The plaintiffs also filed in the trespass action a motion to reopen the estate of F. C. Saunders, deceased. This motion was denied by the trial court. The issues raised and argued by plaintiffs regarding the denial of their motion to reopen the estate are issues not properly before us on this appeal. Appellate review is limited to a consideration of issues between the parties to an appeal. Engineers Construction Corp. v. Tolbert, 74 Colo. 542, 223 P. 56. On this appeal, the only appellees are the individual defendants, O. L. Saunders, Addie Belle Gilliland, and Curtis Saunders. Thus, the affirmance of the action of the trial court dismissing the action against such defendants disposes of all issues properly presented for review.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.