Opinion
June 3, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 333
Allen P. Mitchem, Cheryl Turk, and James E. Mitchem, Allen P. Mitchem, Denver, for plaintiffs-appellees.
Arthur M. Schwartz, P.C., A. Richard Berman, Denver, for defendants-appellants.
PIERCE, Judge.
Defendants appeal from denial of their motion for leave to file a motion for new trial. We affirm.
This action has previously been the subject of appellate proceedings. On July 17, 1973, this court rendered an opinion affirming the trial court's judgment in favor of plaintiffs. Smith v. Kalavity, Colo.App., 515 P.2d 473 (not selected for official publication). Defendants' petition for a writ of certiorari was denied by the Colorado Supreme Court on November 19, 1973, and their motion for rehearing on the petition was denied December 10, 1973.
On May 17, 1974, defendants filed in the district court a motion for leave to file a motion for new trial and an affidavit in support thereof. At that same time, they filed a motion for new trial and a memorandum brief in support thereof, and several exhibits supporting the motions. The trial court stated several bases for its denial of the motion for leave to file a motion for new trial, including a finding that the motion was not timely filed.
C.R.C.P. 59(b) states:
'A motion for a new trial shall be filed not later than (ten) 10 days after the entry of the judgment, or such further time as may be allowed by the court, except that a motion for a new trial on the grounds of newly discovered evidence may be made after the expiration of such period and before the expiration of six (6) months after the entry of the judgment with leave of court obtained on notice and hearing and on a showing of due diligence.'
Defendants contend that the six-month period for filing a motion for new trial on the ground of newly discovered evidence should begin running from the date that an appellant has unsuccessfully exhausted his appellate remedies (here, on December 10, 1973). While this might be the proper date to trigger the running of the time period for a party who is originally successful in the trial court, Bushner v. Bushner, 141 Colo. 283, 348 P.2d 153, it is not the proper initial date for a party who is unsuccessful in the trial court. For him the 'entry of judgment' which commences the running of the time for a motion for new trial is defined as the clerk's notation of the judgment in the register of actions. C.R.C.P. 58(a) and 79(a). See Bushner v. Bushner, Supra. The judgment to which defendants' motions were addressed is the same judgment which was the subject of the previous appellate proceedings. Therefore, the motions were filed long after expiration of the six-month period specified in C.R.C.P. 59(b), and we hold that the trial court had no jurisdiction to consider the motions. Rueckhaus v. Snow, 167 Colo. 51, 445 P.2d 577; Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077; Austin v. College/University Insurance Co., 30 Colo.App. 502, 495 P.2d 1162.
Because of our ruling that the motions were not timely filed, the defendants' argument that the trial court failed to confine itself to a preliminary issue of due diligence regarding the motion for leave to file a motion for new trial is moot.
Judgment affirmed.
COYTE and BERMAN, JJ., concur.