Opinion
No. 74-474
Decided June 17, 1975. Rehearing denied July 8, 1975. Certiorari denied September 2, 1975.
In appeal by defendant, Court of Appeals on its own motion, raised issue of whether it had jurisdiction to consider the appeal.
Appeal Dismissed
1. APPEAL AND ERROR — Notice of Appeal — Timely Filing — Mandatory — Jurisdictional — Parties — Waiver — Prohibited. The timely filing of a notice of appeal is mandatory and jurisdictional, and the parties may not by their independent action amend or waive this jurisdictional requirement.
2. Notice of Appeal — Stipulation — Extension of Time — Seventy-Five Days — Failure — Timely Filing — Thirty Days — Court of Appeals — Without Jurisdiction. Where the parties filed a stipulation with the trial court allowing themselves seventy-five days from the date of the trial court's ruling on defendant's motion for new trial within which to file a notice of appeal, but where the trial court did not grant any extension of time within which to file a notice of appeal, the failure of defendant to file a notice of appeal within thirty days from entry of the order denying her motion for new trial or within an extension of time as provided for in the appellate rules operates to remove the action from the jurisdiction of the Court of Appeals.
Appeal from the District Court of the County of Weld, Honorable Donald A. Carpenter, Judge.
Hayden, Ross Sweeney, William G. Ross, for plaintiffs-appellees.
Lewis E. Eagan, Charles P. Miller, James J. Scott, for defendant-appellant.
On our own motion we have raised the issue of whether we have jurisdiction to hear this appeal. Having afforded counsel opportunity to brief the question, we now rule that the appeal is dismissed.
The operative facts are as follows. On or about May 22, 1974, judgment was rendered against defendant pursuant to a jury verdict. Timely motion for new trial was filed. On July 17, 1974, the parties filed a stipulation with the court allowing themselves 75 days from the date of the trial court's ruling on the motion for new trial within which to file a notice of appeal. On July 18, 1974, the trial court ruled on the motion for new trial, but that order did not grant any extension of time within which to file a notice of appeal as provided by C.A.R. 4. See Laugesen v. Witkin Homes, Inc., 29 Colo. App. 58, 479 P.2d 289. On October 1, 1974, defendant filed her notice of appeal with the district court.
[1,2] The timely filing of a notice is mandatory and jurisdictional. Chapman v. Miller, 29 Colo. App. 8, 476 P.2d 763. The parties may not by their independent action amend or waive this jurisdictional requirement. Hence, the failure to file a notice of appeal within 30 days from entry of the order denying the motion for new trial or within an extension of time as provided for in C.A.R. 4(a) removes this case from our jurisdiction. Federal Lumber Co. v. Hanley, 33 Colo. App. 18, 515 P.2d 480.
Appeal dismissed.
JUDGE BERMAN concurs.
JUDGE COYTE dissents.