Opinion
No. 71-116
Decided February 23, 1972.
Plaintiff appealed trial court's denial of plaintiff's motion for extension of time to file notice of appeal.
Affirmed
1. APPEAL AND ERROR — Notice of Appeal — Enlargement of Time — Denial — Not Abuse of Discretion. Where motion for new trial was denied on December 7 and plaintiff's counsel mailed notice of appeal to court clerk on January 6, it being received on January 8, and where at subsequent hearing for enlargement of time to file notice of appeal the only effort to show excusable neglect was counsel's statement that, "Now, we can't get our client to send it back to us with his signature on it. Now, we are having that trouble with time," the trial court did not abuse its discretion in refusing to extend the time for filing notice of appeal.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
Peter Razatos, William R. Hebeler, for plaintiff-appellant.
Wormwood, Wolvington and Dosh, Winston Wolvington, for defendant-appellee.
This case is before us on plaintiff's claim that the trial court abused its discretion in denying her motion for extension of time to file notice of appeal. We disagree and affirm.
The trial court denied plaintiff's motion for a new trial on December 7, 1970. On January 6, 1971, plaintiff's counsel mailed to the Clerk of the District Court notice of appeal, which notice was received by the Clerk on January 8, 1971.
On January 14, 1971, defendants filed a motion to strike as not being timely filed. Plaintiff then filed a motion to enlarge the time for filing notice of appeal and stated in the motion "that a bond in the required sum of two hundred fifty ($250.00) dollars has been ordered by counsel for the plaintiff but that said bond has not as yet been completed."
At the hearing for enlargement of time to file notice of appeal on January 19, 1971, the only effort to show excusable neglect was the statement by plaintiff's counsel that, "Now, we can't get our client to send it back to us with his signature on it. Now, we are having that trouble with time."
C.A.R. 4(a) provides:
"Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal by any party for a period of not to exceed 30 days from the expiration of the time otherwise prescribed by this section
(a). Such an extension may be granted before or after the time otherwise prescribed by this section (a) has expired. . . ."
[1] In the instant case there was no showing as to why the notice of appeal was not filed within the time allowed. Since there was no showing of excusable neglect, there was no abuse of discretion on the part of the trial court in its refusal to extend the time for filing the notice of appeal. Laugesen v. Witkin Homes, Inc., 29 Colo. App. 58, 479 P.2d 289.
Judgment affirmed.
JUDGE PIERCE and JUDGE SMITH concur.