Opinion
No. 72-354
Decided August 21, 1973.
Defendant appealed trial court's denial of its motion to set aside a default judgment.
Reversed
1. PRACTICE AND PROCEDURE — Motion to Reinstate — Seven Months After — Dismissed — Not Timely Filed — No Jurisdiction — Reinstatement a Nullity. Where plaintiff filed motion to reinstate action nearly seven months after the action had been dismissed for failure to prosecute, the motion was not timely filed within the period specified by the rules of procedure; consequently, the trial court was without authority to reinstate the case or to provide further relief; and its order of reinstatement is a nullity.
Appeal from the District Court of the City and County of Denver, Honorable Neil Horan, Judge.
Coggan Koller, Morton L. Coggan, Brenman, Sobol Baum, Melvin Rossman, for plaintiff-appellee.
Rector and Melat, Leo W. Rector for defendant-appellant.
This is an appeal from an order denying defendant's motion to set aside a default judgment.
Plaintiff, Love, allegedly sustained injuries in a slip-and-fall accident while on the property of the defendant, Rocky Mountain Kennel Club. On January 30, 1970, Love commenced action against the Kennel Club by service of summons and complaint and by timely filing of the complaint as required by C.R.C.P. 3(a). Defendant entered no appearance.
Nothing further transpired until January 27, 1971, when the Denver District Court, pursuant to its local Rule 21, issued a notice to plaintiff to show cause why the case should not be dismissed for lack of prosecution. Plaintiff did not respond thereto and, on March 2, 1971, the case was dismissed.
Nearly seven months later, on September 30, 1971, plaintiff's then attorney filed a motion to reinstate the case, which motion was heard and granted ex parte. Thereafter, on December 2, 1971. the trial court entered a default judgment against the defendant in the amount of $7,500. Defendant made its initial appearance by filing a motion to set aside the default judgment. The motion was denied on September 25, 1972, and this appeal followed. We reverse.
We agree with defendant's contention that the trial court erroneously granted plaintiff's motion to reinstate the case.
A dismissal without prejudice for failure to prosecute is a final order. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49; see also Mizar v. Jones, 157 Colo. 535, 403 P.2d 767. Therefore, upon dismissal of her action on March 2, 1971, plaintiff had three alternatives available: (1) Appeal the order of dismissal; (2) move for reinstatement; or (3) initiate a new action by filing a new complaint.
[1] Plaintiff elected to pursue the second alternative for reinstatement. However, motions for relief from a final order are governed by C.R.C.P. 60(b), under which the time for filing such motions is expressly limited to six months. AA Construction Co. v. Gould, 28 Colo. App. 161, 470 P.2d 916; C.R.C.P. 6(b). Plaintiff's motion for reinstatement was not timely filed within the specified six-month period following entry of the order of dismissal. Consequently, the trial court was without authority to reinstate the case or to provide further relief. AA Construction Co. v. Gould, supra. Thus, the trial court's order of reinstatement is a nullity.
We recognize and agree with the general policy, announced by our Supreme Court, to encourage the disposition of litigation on its merits rather than by imposition of technical rules. Smith v. Bott, 169 Colo. 133, 454 P.2d 82. However, such general policy does not operate to bar the result mandated by the applicable specific rules of procedure.
The judgment against defendant is reversed and the cause is remanded to the district court with directions to set aside the order of reinstatement and to reinstate the judgment of dismissal without prejudice.
JUDGE ENOCH and JUDGE PIERCE concur.