Opinion
Oct. 30, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1192
Dufford, Williams & Milburn, D. J. Dufford, Grand Junction, for plaintiff-appellant.
Wood, Ris & Hames, Eugene S. Hames, Denver, for defendants-appellees.
SMITH, Judge.
This case was originally tried to a jury which returned a verdict in favor of defendants on September 26, 1973. Counsel for plaintiff then requested and was granted a period of thirty days within which to file a motion for new trial. On October 24, 1973, a motion for new trial was mailed to the court and opposing counsel. Counsel for defendants received the motion on October 26, 1973. The court, However, did not receive the motion until November 5, 1973.
On November 14, 1973, the trial court denied plaintiff's motion for a new trial on the grounds that (a) the motion was not filed within the thirty days granted for the filing of that motion, and (b) that the substantive issues asserted did not merit the granting of a new trial. On December 11, 1973, plaintiff filed a designation of record and request for transcript, as well as a notice of appeal, appealing the trial court's denial of plaintiff's motion for new trial. On December 24, 1973, defendants filed a motion requesting the court to strike the notice of appeal for the reason that plaintiff's motion for new trial was not filed within the thirty day period. On January 2, 1974, plaintiff filed a motion pursuant to C.R.C.P. 60(b) requesting the trial court to deny defendants' motion to strike. The trial court granted defendants' motion to strike plaintiff's notice of appeal, and it is that order from which plaintiff appeals.
The initial issue is whether the trial court had the authority to strike plaintiff's notice of appeal. An order denying a motion for new trial renders the judgment to which it relates final, and terminates the litigation in the trial court. This is true even where, as here, the denial is based upon an untimely filing of the motion. See C.R.C.P. 59. The plaintiff was required to file a notice of appeal in order to perfect his right to appeal the trial court's final order. C.A.R. 4 requires that a notice of appeal shall be filed with the trial court and delegates to the trial court only the authority to extend the prescribed time for filing such a notice of appeal, provided such application is timely made. C.A.R. 42 authorizes the trial court to order a voluntary dismissal of the appeal only where all of the parties agree.
The rules of procedure do not authorize a trial court to strike a notice of appeal. If a trial court should do so, the result would be tantamount to an involuntary dismissal of an appeal, which is a power inherently and exclusively reserved for the appellate courts. C.A.R. 3(a); and See C.A.R. 35. Therefore, the trial court lacked the authority to strike plaintiff's notice of appeal, and we reverse that order.
However, the issue of whether the trial court properly denied plaintiff's motion for new trial because of his late filing has been argued by both sides before us, and thus it should be dealt with here in order to avoid remand of the case for determination of that issue. We determine that the trial court's order was, in effect, a refusal to hear the motion and that it was correctly entered. The trial court's additional ruling that the motion be denied on its merits thus had no effect.
C.R.C.P. 59(b) requires that a motion for a new trial shall be filed not later than 10 days after the entry of judgment or within such further time as may be authorized by the trial court, and mere deposit in the mail is not a filing. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077. This rule is mandatory and failure to comply therewith requires a dismissal of the appeal. Rueckhaus v. Snow, 167 Colo. 51, 445 P.2d 577. Plaintiff argues that C.R.C.P. 60(b) was inserted to provide relief in situations where extenuating circumstances justify relief from the strict application of C.R.C.P. 59(b). We disagree. A trial court cannot enlarge the time for the filing of a motion for a new trial after the expiration of the time specified by the court or, in the event the court has not specified a time, the time set by the rules themselves. Austin v. College/University Insurance Co., 30 Colo.App. 502, 495 P.2d 1162; C.R.C.P. 6(b). The trial court has authority to alter, amend, modify or even set aside a final judgment for the specific reasons enumerated in C.R.C.P. 60(b); however, C.R.C.P. 60(b) cannot be used to confer jurisdiction which has already been lost by the expiration of time to entertain such a motion. Austin v. College/University Insurance Co., Supra; Niles v. Shinkle, Supra.
Therefore, since plaintiff failed to file a timely motion for new trial, we dismiss the appeal.
COYTE and PIERCE, JJ., concur.