Opinion
Nov. 19, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
No appearance for the plaintiffs-appellees.
Almon & Barsotti, David Barsotti, Denver, for defendants-appellants.
BERMAN, Judge.
We dismiss this appeal. Plaintiffs filed a complaint seeking the recovery of monies allegedly owed to them by defendants. Defendants denied the allegations of the complaint and asserted three counterclaims. Thereafter, plaintiffs moved the trial court to dismiss defendants' first counterclaim or to require an election of remedies and for dismissal of defendants' second and third counterclaims. At a hearing on that motion, the trial court reserved ruling on the motions and granted defendants 30 days within which to file an amended counterclaim and also granted time to the plaintiffs to reply to the amended counterclaim or to renew their motions. Defendants filed a motion for rehearing, and the court ruled that it would not dismiss the first counterclaim nor require an election of remedies at that time, and ruled as to the second and third counterclaims that defendants could either stand on the original counterclaims or file an amended counterclaim within 20 days. No further pleadings were filed by defendants and this appeal followed.
There is no order dismissing or otherwise disposing of the two counterclaims on which defendants are apparently standing. Hence, there is no final judgment to support this appeal as required by C.A.R. 1(a)(1).
Although this matter is before us Ex parte, and the absence of a final judgment has not been raised, we are required to take notice thereof. Schtul v. Christ, 132 Colo. 293, 287 P.2d 661.
Additionally, plaintiffs' complaint is unresolved and defendants, even if standing on two of their original counterclaims, have obtained no express determination by the trial court allowing an appeal as is required by C.R.C.P. 54(b). In the absence of any such express determination by the trial court, there is no final judgment from which an appeal may lie. See Trans Central Airlines, Inc., v. McBreen & Associates, Inc., 31 Colo.App. 71, 497 P.2d 1033.
The appeal is dismissed.
COYTE and KELLY, JJ., concur.