Civil Rule 54(c): Whatever Relief You're Entitled Too!
The facts alleged in the complaint in the instant case must be taken as true, and if, upon any theory of law, relief should be granted, then the motion to dismiss cannot be sustained. Rule 54(c) provides, inter alia, "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." In Gay v. E. H. Moore, Inc., D.C., 26 F.Supp. 749, 751, the court said: "Plaintiff has misconceived his remedy and is seeking relief to which he is not entitled under the law, but this does not mean that his petition should be dismissed; for, if under the allegations of the petition he is entitled to any relief, the court upon a hearing may grant him the relief to which he is entitled regardless of the prayer in the petition * * *"
The question, therefore, is not whether the plaintiff in the case at bar has asked for the proper remedy, but whether under his pleadings he is entitled to any remedy. Assuming, as we must, the truth of the facts alleged, we are certain that the complaint was sufficient to state a claim upon which relief should be granted. It was sufficient in form to require the trial court to issue a rule upon the defendants to show cause why their action in creating a variance from the zoning ordinance should not be nullified. Regennitter v. Fowler, 290 P. 2d 223, 225 - Colo: Supreme Court 1955
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