Borga v. Hendrickson

For reasons hereinafter stated, I dissent from the majority opinion.

In construing our rule 15 (b) we have held that in the absence of motions or objections any issue which the parties see fit to present may be considered and determined by the trial court, and that the pleadings become functus officio. Carlson v. Bain, 116 Colo. 526, 182 P. (2d) 909; Scheller v. Mawson, 117 Colo. 201, 185 P. (2d) 1009; Toy v. Rogers, 114 Colo. 432, 165 P. (2d) 1017; see, also, address of Mr. Thomas Keely of Denver Bar appearing in volume 1, ’35 C.S.A., pp. 449, 461. During the course of the trial Mr. Dugan,…