Opinion
No. 17,699.
Decided September 12, 1955.
A motion to dismiss was granted in the trial court and the plaintiff brings error.
Writ of Error Dismissed.
1. APPEAL AND ERROR — Record on Error — Final Judgment. The entry of judgment upon the court's order is a ministerial duty of the clerk, but it is the duty of a litigant seeking review to see that the record presented to the Supreme Court is complete and contains a final judgment, otherwise dismissal will follow.
2. Record on Error — Rules. The rule requiring the inclusion of the judgment in the record filed in the Supreme Court is mandatory, and in its absence the writ of error will be dismissed.
Error to the District Court of Larimer County, Hon. William E. Buck, Judge.
Mr. WALDO RIFFENBURGH, for plaintiff in error.
Mr. ALDEN T. HILL, Mr. RALPH W. COYTE, for defendant in error.
Plaintiff in error was plaintiff in the trial court and defendant in error was defendant in that tribunal. To plaintiff's complaint defendant filed a motion to dismiss, which motion was granted, and plaintiff brings the cause here for review by writ of error.
WE again direct attention to the provisions of Rules 111 and 112 R.C.P. Colo. In the record brought to this court there is no final judgment. We find no designation of record and the certificate of the clerk of the district court makes no mention of the judgment in the cause. We have repeatedly held that unless there is a final judgment in the record the writ of error must be dismissed.
Slifka v. Viettie, 110 Colo. 138, 131 P.2d 417; Savageau, Inc. v. Larsen, 117 Colo. 229, 185 P.2d 1012; Howard v. American Law Book Co., 121 Colo. 5, 212 P.2d 1006; Morron v. McDaniel, 127 Colo. 180, 254 P.2d 862; Cable v. Smith, et al., 130 Colo. 337, 275 P.2d 945; Horlbeck v. Walther, 131 Colo. 36, 279 P.2d 434; French et al v. Haarhues, et al., 132 Colo. 261, 287 P.2d 278.
In French et al. v. Haarhues, supra, Chief Justice Alter aptly stated in language that is plain and explicit: "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." (Emphasis supplied).
The cases above cited lay down a rule which must be followed by a defeated litigant if he expects us to review his case. The rule requiring the inclusion of the judgment is mandatory, and in the absence thereof we have no alternative but to dismiss the writ of error. Counsel who bring cases to this court must realize the duty resting upon them to present a complete record which in every instance must include a final judgment.
The writ of error is dismissed.