Opinion
Nov. 26, 1974
Editorial Note:
This case has been marked 'not for publication' by the court.
William G. Sumners, Jr., D. Dale Shaffer, Denver, for plaintiff-appellant.
Jon R. Sell, James E. Tarter, Weldon M. Tarter, William R. Tiedt, Colorado Springs, for defendant-appellee.
BERMAN, Judge.
Appellant (plaintiff) filed a complaint in replevin seeking recovery of certain items of property from defendant. Defendant thereafter filed a motion to dismiss.
On June 25, 1973, following argument on the motion, the trial court entered an order as follows: 'IT IS ORDERED, ADJUDGED AND DECREED that defendant's Motion to Dismiss be and is hereby granted.' A certified copy of the clerk's docket for the same date shows the following entry: 'Order granting defendant's Motion to Dismiss filed and entered . . ..' The record next shows plaintiff's notice of appeal and the docketing of the case in this court.
Among other issues brought before us, the defendant has questioned the jurisdiction of this court to act in that no final judgment appears in the trial court record. We agree and dismiss the appeal.
Defendant's attack on jurisdiction was raised by motion after the filing of plaintiff's opening brief in this court alleging that the order of the trial court granting the motion to dismiss did not constitute a final judgment within the meaning of C.A.R. 1(a)(1). Plaintiff filed its objections to the motion on the grounds that the motion had been filed too late, that is, after the filing of plaintiff's brief. This court denied the motion to dismiss the appeal, but reserved to defendant the right to reassert the issue stated in its motion at the time of oral argument before this court. The issue was raised by defendant in its answer brief thereafter filed in this court and again at oral argument.
Plaintiff relies upon Meek v. City of Loveland, 85 Colo. 346, 276 P. 30, and Connell v. Continental Casualty, 87 Colo. 249, 286 P. 278. Neither of the cases cited by plaintiff are applicable here. In Meek, the Supreme Court found that a final judgment had been entered. In Connell, the motion to dismiss was not based upon a failure to have final judgment entered but rather because of the late filing of plaintiff's opening brief.
Our examination of the record before us reveals no final judgment entered by the trial court. The certificate of the clerk of the trial court in forwarding the record makes no mention of any judgment being entered.
By its decision, which is dispositive here, the Supreme Court in French v. Haarhues, 132 Colo. 261, 287 P.2d 278, stated as follows:
'The entry of a judgment upon the court's order is a ministerial duty on the part of the clerk, but if a defeated litigant desires a review by writ of error in this court, it is his Duty to see that the record presented here is properly prepared and completed and contains a final judgment; otherwise dismissal will follow. . . .'
The lack of a final judgment is jurisdictional and prohibits our review on the merits of the case.
Appeal dismissed.
PIERCE and STERNBERG, JJ., concur.