Opinion
Mellman, Mellman & Thorn, Isaac Mellman, Denver, for plaintiff in error.
Murray, Baker & Wendelken, Ben S. Wendelken, Colorado Springs, for defendants in error.
SILVERSTEIN, Chief Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This action arises out of a caveat filed by plaintiff in error to the will of the decedent, Oscar O. Babcock, in which caveatrix alleged she was a natural daughter of the decedent and that he was mentally incompetent and subject to undue influence when the will was written. After a trial to the court in 1960 at which the caveatrix failed to prove she was the decedent's daughter and offered no proof of mental incompetency or undue influence the caveat at was dismissed. The caveatrix filed a motion for a new trial which was denied by a memorandum initialed by the trial judge and dated January 11, 1965. No writ of error was applied for from the dismissal of the caveat. Fourteen months later the estate was closed, distribution made and the executrix discharged. Fourteen months after that the caveatrix filed a petition to reopen the estate, which was denied. Motion for rehearing was also denied and caveatrix here seeks reversal. Defendants in error assert that the denial of the petition to reopen the estate was not a final order and therefore not appealable.
I
We will first consider the assertion of defendants in error that the dismissal of the caveat and the order of distribution and discharge were final orders on which the right of appeal has lapsed because of failure to sue out a writ of error within the specified time. In Hartsel v. People, to Use of Keables, 21 Colo. 296, 301, 40 P. 567, 568, the Supreme Court stated:
'In so far, therefore, as the claims made against the administratrix were considered and passed upon by the county court sitting as a court of probate, the judgment of that court, in the absence of fraud or mistake, must be considered as final and conclusive as that of any other court to competent jurisdiction.'
Proceedings to reopen an estate are analogous to proceedings for relief from a judgment in a civil action. Emmerling v. James C. Curtis & Co., 103 Ind.App. 139, 5 N.E.2d 677. Our Supreme Court has repeatedly held that refusal to set aside a judgment is not a final order and is therefore not appealable. McMullin v. City and County of Denver, etc. Board of Water Commissioners, 133 Colo. 297, 294 P.2d 918. In Miller v. Buyer, 77 Colo. 329, 331, 236 P. 990, 991, the Court said:
'(The plaintiff in error) seeks, however, to accomplish a review of the final judgment, contrary to the doctrine of this court, by suing out a writ of error to a nonfinal order in a subsequent proceeding in the same cause. In other words, though the writ of error here is to a nonreviewable order, entered in the same case in a proceeding therein subsequent to the final judgment, plaintiff in error asks to have therein the preceding final judgment itself reviewed after the statutory time for a writ of error thereto has elapsed. That cannot be done.'
The dismissal of the caveat and the discharge of the executrix were final orders and caveatrix cannot have those actions reviewed by writ of error after the undue lapse of time, assuming the court, and the judge thereof had jurisdiction to hear and determine the matter. However the petition to reopen the estate asserts that the trial judge lacked authority to enter the order denying the motion for new trial because his term had expired and that the order was therefore void.
In Whitten v. Coit, 153 Colo. 157, at 174, 385 P.2d 131, at 140, the court said,
'Considering what is meant by the term 'jurisdiction' it is well settled that this term includes the court's power to enter the judgment, and the entry of a decree which the court has no authority to enter is without jurisdiction and void. A void judgment may be attacked directly or collaterally (citing cases).'
The issue of the validity of the order denying caveatrix' motion for a new trial is properly before this court.
II
We now turn our attention to the question of the validity of the order denying the motion for new trial. Caveatrix asserts that the order of the trial judge denying the motion for a new trial was made after his term had expired and was therefore void. This argument is based on the fact that the order was entered on the records of the Clerk on January 19, 1965, whereas the term of the trial judge had expired on January 12, 1965.
While not condoning in any manner the excessive delay of the trial judge in ruling on the caveatrix' motion for new trial, the record discloses that his denial of that motion was made prior to the expiration of his term of office. There is no proof that the date affixed to the memorandum order, January 11, was not the date on which it was made. It is well settled in this state that the date when an order is pronounced determines its validity and not the date when it is entered on the Clerk's records. King v. Williams, 131 Colo. 286, 281 P.2d 163; Wilson v. Collin, 45 Colo. 412, 102 P. 21.
Therefore the trial court correctly ruled that the questioned order was valid and the denial of the petition to reopen the estate was proper.
The judgment is affirmed.
DWYER and ENOCH, JJ., concur.