dissenting:
In their complaint Tanner and Quinby, after averring that they are residents and taxpayers of the City of Boulder and are owners of real estate situated therein, allege that “each of them are persons aggrieved by certain annexation proceedings attempted by the defendant City of Boulder, within the terms and provisions of Section 139-11-6, C.R.S. 1953, and bring and institute this action as such” (Emphasis supplied.) The relief prayed for in each of their seven claims for relief is the invalidation of a completed annexation by Boulder of certain undeveloped land owned by one Hindry.
At the outset it should be noted that Tanner and Quinby specifically allege that their right to “bring and institute this action” is dependent upon C.R.S. ’53, 139-11-6. Neither in the trial court nor in this court have they contended that they have a right to maintain the action independent of that statute. Hence, the holding of the majority that “independent of C.R.S. ’53, 139-11-6 plaintiffs had a right to be heard even though their complaint stated that it was based upon that statute” is purely gratuitous and passes final judgment on a matter which has not been urged, briefed or argued by any of the parties. I disagree with such practice, as well as with the result reached by the majority.
*288The only issue urged, briefed, and argued in this court is whether Tanner and Quinby have demonstrated by the allegations of their complaint that they are “aggrieved” persons within the meaning of C.R.S. ’53, 139-11-6. In my view they have not. I am persuaded that when C.R.S. ’53, 139-11-6 is read and viewed in the context of the entire article on annexation, the term “aggrieved” persons, as used therein, is limited to landowners in the area annexed or sought to be annexed, and does not include, as the majority has applied it, to the tens of thousands of residents, taxpayers and landowners in the City of Boulder.
In support of the foregoing observations, see Griffin v. Canon City, 147 Colo. 15, 362 P. (2d) 200, where in a somewhat analogous situation it was held that private citizens had no right to challenge the completed annexation of a town to a city.
See, also, 13 A.L.R. 2nd pp. 1279-1305, for a comprehensive annotation on the general subject of the right and capacity of a private party to attack the extension of municipal boundaries. In my judgment this annotation reveals that the overwhelming weight of authority is diametrically opposed to the majority opinion in all particulars.