
    No. 24468.
    Holt Chew v. The District Court of the First Judicial District of the State of Colorado and the Honorable George G. Priest, as one of the judges of said court, and Acacia Mutual Life Insurance Company.
    (464 P.2d 521)
    Decided February 2, 1970.
    Leslie A. Gross, for petitioner.
    Gorsuch, Kirgis, Campbell, Walker and Grover, Charles E. Rhyne, for respondent Acacia Mutual Life Insurance Company.
    
      En Banc.
    
   Mr. Justice Day

delivered the opinion of the Court.

This is an original proceeding in which the petitioner, Holt Chew, sought an order from this court in the nature of mandamus to require the Jefferson County district court to conduct a hearing to determine the amount of property that should be held in an escrow account in The First National Bank of Denver.

It was alleged in the petition that the escrow was to secure a judgment in the Jefferson County district court in favor of Acacia Mutual Life Insurance Company and against petitioner, Holt Chew. Writ of error to that judgment is pending in this court.

In response to the show cause order, we have been furnished copies of the escrow agreement. It appears therefrom that it is a contract between the parties which is not a part of the record in the case in the Jefferson county court or here; was not made pursuant to any stipulation in court; and is entirely outside of any issue presented in the court below or here. The First National Bank of Denver, the escrow holder, is not a party to the litigation between the parties.

If the parties, or one of them, desire to determine their rights under the contract, it appears that is a matter for separate litigation. The trial court was correct in its determination that it was without jurisdiction to interpret or enforce the contract.

The rule is discharged.

Mr. Justice Pringle and Mr. Justice Kelley dissent.  