Opinion
Sept. 22, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Duncan J. Cameron, Denver, for plaintiffs in error.
Wynn M. Bennett, Jr., Denver, for defendant in error.
DWYER, 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.
The parties will be referred to as they appeared in the trial court where plaintiffs in error were defendants and defendant in error was plaintiff.
In this action brought by plaintiff under R.C.P.Colo. 105, the court entered judgment quieting plaintiff's title to certain mining claims.
The complaint was filed November 12, 1964, and defendants appeared by their attorney and filed a general denial on December 2, 1964. There were numerous delays in the proceedings, for various reasons, including the substitution of attorneys by defendants, and the disqualification of one judge on motion of one of the defendants. A pre-trial conference was held on May 16, 1967, and the trial was set for September 25, 1967. On September 11, 1967, defendants' then attorney of record filed his notice of withdrawal in which he stated that defendants had expressed dissatisfaction with his services, had withdrawn the complete file and all documents relating thereto, and that defendants had advised the attorney that new counsel would be obtained immediately. On September 22, 1967, defendants Pro se filed a motion for continuance on the grounds that they were without counsel. Defendants made no application to the court for an order on their motion. On September 25, 1967, the day on which the trial was set, the plaintiff appeared ready for trial but the defendants did not appear in person or by counsel. The case proceeded to trial and the court entered judgment upon the basis of the evidence presented by plaintiff. Defendants when appeared by new counsel and filed a motion for new trial. The motion was denied and defendants then instituted these proceedings in error.
The case is presented on an agreed record which includes the pleadings, motions, and judgment but does not include the reporter transcript. The parties have stipulated that the only grounds upon which defendants rely for reversal are that the district court erred in not granting the motion for continuance filed by defendants Pro se; in proceeding to trial and entering judgment against defendants in their absence; and in failing to grant defendants' motion for new trial.
All of the claims of error question the court's action in ordering the trial to proceed on the date set in the pre-trial order. In the circumstances disclosed by the record it was within the trial court's discretion to proceed with the trial as scheduled or to continue the case. See Schwenk v. Bolis, 157 Colo. 392, 402 P.2d 643; Davis v. Klaes, 141 Colo. 19, 346 P.2d 1018; Koch v. Story, 47 Colo. 335, 107 P. 1093.
The only explanation given by defendants for their failure to appear at the trial is that they assumed their motion for continuance would be granted. The basis for this erroneous assumption is not disclosed. When a case is regularly set for trial, it may be continued by order of the court, but the mere filing of a motion for continuance does not prevent the court from proceeding with the trial.
The defendants filed a motion for a new trial on the grounds that the court's proceeding to trial was, under the circumstances, an irregularity in the proceedings by which the defendants were prevented from having a fair trial. Although this motion for new trial was not filed within the time required by R.C.P.Colo. 59(b), the court heard the motion on its merits. The court properly denied the motion on the bases that there was no irregularity in the proceedings which deprived the defendants of a fair trial, and that there was no claim or showing by defendants that they had a meritorious defense to the action.
The record discloses no abuse of discretion by the trial court and no irregularity in any of the proceedings.
It should be stated that counsel appearing here did not represent the defendants in the proceedings in the trial court.
The judgment is affirmed.
ENOCH and PIERCE, JJ., concur.