Opinion
Sept. 1, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
James C. Shearon, Denver, for plaintiff in error.
Joseph L. Sweeney, Denver, for defendant in error.
PIERCE, 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.
Plaintiff in error was one of several defendants below and will be hereinafter referred to as Foltz.
Defendant in error brought an action in fraud against Foltz and several other defendants, and obtained personal service on him by leaving a copy of the summons and complaint with his wife on September 8, 1966. At that time, Foltz was in California on a business trip, having been there for approximately four months. He returned to his Jefferson County home on September 29, 1966, but took no action regarding the summons and complaint, and did not contact his attorney.
On October 6, 1966, default was entered against him. He learned of the entry of default on December 2, 1966, and filed a motion to set it aside. The trial court held an extensive hearing on this motion and took testimony, after which it denied the motion. He commenced this appeal, even though no entry of judgment, default or otherwise, appears in the record.
Although the absence of a final judgment appearing in the record is not raised by the parties on appeal, we feel compelled to take notice thereof. Schtul v. Christ, 132 Colo. 293, 287 P.2d 661. A writ of error will not lie under R.C.P.Colo. 111, in the absence of a final judgment. Garcia v. Thompson, 137 Colo. 231, 323 P.2d 280.
The writ of error is therefore dismissed.
COYTE and ENOCH, JJ., concur.