Summary
In Dill v. County Court, 37 Colo. App. 75, 77, 541 P.2d 1272, 1273 (1975), a division of the court of appeals concluded that a nunc pro tunc judgment may not be used "to circumvent the time requirements of the rules of procedure" and resurrect an appeal that was untimely filed.
Summary of this case from In re RungeOpinion
No. 74-450
Decided October 23, 1975.
Relative to appeal of denial of petition for prohibition, clerical failure of trial court to enter timely judgment was corrected by nunc pro tunc entry, but that order also purported to resurrect the appeal from jurisdictional defect of untimely filed notice of appeal.
Appeal Dismissed
1. JUDGMENT — Clerical Failure Correction — Nunc Pro Tunc Entry — Date — Jurisdictional Defect — Thereby Cured — Impermissible. Trial court may not, in process of correcting clerical failure to enter timely judgment, arbitrarily select date of nunc pro tunc judgment so as to cure jurisdictional defect of untimely filed notice of appeal, but rather must enter actual date of decision.
2. APPEAL AND ERROR — Date of Judgment — Two Alternatives — Either Case — No Timely Notice of Appeal — No Jurisdiction — Appeal Dismissed. Under circumstances presented, actual date of judgment appealed from is either the date upon which trial court disposed of issue raised in the action or the date upon which the nunc pro tunc judgment was entered; and, in either case, a timely notice of appeal to the judgment was not filed; hence, the Court of Appeals is without jurisdiction to proceed and thus the appeal must be dismissed.
Appeal from the District Court of the City and County of Denver, Honorable Clifton A. Flowers, Judge.
Max P. Zall, City Attorney, Lloyd K. Shinsato, Assistant City Attorney, William J. Chisholm, Assistant City Attorney for petitioner-appellant.
Ralph B. Rhodes, for respondents-appellees.
Remigo Pete Reyes, Alfredo E. Pena, Hector O. Sanchez, for intervenors-appellees. Division II.
Arthur G. Dill, as Chief of Police in the City and County of Denver, appeals from an order of the trial court denying his petition for relief in the nature of prohibition. We dismiss the appeal.
The record in this case, as originally presented to this court, showed that the trial court disposed of the issues between the parties on April 30, 1974, by minute order. Motion for new trial was not filed until May 29, 1974. This motion was denied on July 18, 1974, but notice of appeal was not filed until August 20, 1974. Moreover, the record contained no indication of entry of judgment in the register of actions.
Accordingly, since it appeared that there had been a failure to comply with the requirements of C.R.C.P. 58(a)(2), 59(b), 79(a)(4), and C.A.R. 4(a), this court, on July 7, 1975, issued an order to show cause why this appeal should not be dismissed for noncompliance with these rules. Additional time was thereafter granted to allow appellant to perfect the record, a total of 60 days having been authorized for this purpose.
A supplemental record was filed in this court which shows that the trial court granted two extensions of time for the filing of appellant's motion for new trial. The supplemental record also contains a written form of judgment signed by the trial court on the 31st day of July, 1975, nunc pro tunc to July 22, 1974. This judgment was entered in the register of actions on July 31, 1975. It thus appears that the record deficiencies under C.R.C.P. 58(a)(2), 59(b), and 79(a)(4) have been substantially corrected.
The question remains, however, whether the supplementation of the record meets the requirements of C.A.R. 4(a). The answer depends on the effective date of the judgment of July 31, 1975.
Nunc pro tunc judgments operate retrospectively and are given the same force and effect as if entered at the time the court's decision was originally rendered. See Stone v. Currigan, 138 Colo. 442, 334 P.2d 740; Feuquay v. Industrial Commission, 107 Colo. 336, 111 P.2d 901. While the formal entry of judgment is a mere clerical or ministerial function, correction of such clerical oversights must relate back to the date of the actual rendition of decision. See Harrington v. Harrington, 58 Colo. 154, 144 P. 20.
Here, while the ostensible purpose of the nunc pro tunc judgment was to correct the clerical failure to timely enter judgment on the April 30, 1974 decision, the trial court did not select the actual date of its decision for its nunc pro tunc date. Instead, an arbitrary date, July 22, 1974, was chosen for the apparent purpose of resurrecting this appeal from the fatal defect of untimely filing of the notice of appeal on August 20, 1974.
[1] A trial court may not thus correct jurisdictional defects in the appeal. Compliance with the rules of court is prerequisite to appellate jurisdiction, and actions undertaken to avoid application of those rules, whether by the parties or by the trial court, cannot operate to confer jurisdiction. See Concelman v. Ray, 36 Colo. App. 181, 538 P.2d 1343. Nor may a nunc pro tunc judgment be used to circumvent the time requirements of the rules of procedure, see Dickson v. Horn, 89 Colo. 234, 1 P.2d 96, and thus we may not consider July 22, 1974, as the date of entry of the judgment.
[2] The date of entry of judgment in this case, for purposes of appeal, must be either April 30, 1974, or July 31, 1975. If it is April 30, 1974, then the notice of appeal directed to the judgment of that date was not timely filed following denial of the motion for new trial, and the defect is jurisdictional. See Chapman v. Miller, 29 Colo. App. 8, 476 P.2d 763. If July 31, 1975, is the effective date of the judgment, there has been no notice of appeal directed to a judgment of that date.
While this court will exercise all proper means to preserve the valuable right to appeal, this is not a case in which something has been done too soon, resulting in a premature appeal. See, e.g., Commercial Credit Corp. v. Frederick, 164 Colo. 5, 431 P.2d 1016. This is a case in which nearly everything has been done too late. This court is, therefore, without jurisdiction to proceed, and the appeal is accordingly dismissed.
JUDGE SMITH and JUDGE RULAND concur.