Opinion
Benjamin R. Loye, Wheat Ridge, for plaintiff in error.
Ben Klein, Denver, for defendant in error.
SILVERSTEIN, Chief Judge.
Transferred from the Supreme Court pursuant to statute.
Plaintiff in error, plaintiff below, seeks reversal of an order of the Superior Court of the City and County of Denver setting aside a judgment previously entered in favor of plaintiff.
The plaintiff, Rogers, brought the action to recover damages allegedly suffered by him in an assault and battery by defendant, Tovrea. While Tovrea made an appearance, pro se, and filed an answer, neither he nor anyone representing him appeared at the trial, although he was duly notified of the date of the trial. The matter was tried on the merits and a judgment entered for the plaintiff. Two months later, Tovrea, through counsel, filed a motion to vacate the judgment and for leave to file an amended answer. This motion was granted by the trial court.
Although defendant in error did not raise the point, we cannot overlook the fact that the order complained of is not an appealable order since it is not a final judgment. This was determined by the Supreme Court in Schtul v. Christ, 132 Colo. 293, 287 P.2d 661, wherein it is stated:
'The order of the trial court in setting aside its former judgment is not a final judgment, therefore, the present writ of error is premature. The record now before us fails to show final judgment as required by R.C.P., Rule 111. Although this issue was not raised * * * by the parties, this Court must take cognizance of the record as presented.'
After the matter is finally determined and a judgment entered, the propriety of the order vacating the original judgment can be reviewed on appeal.
'(T)he only proper procedure to secure review of a trial court's order granting an application to set aside a default judgment is by writ of error after final judgment.'
General Aluminum Corp. v. Arapahoe County District Court, 165 Colo. 445, 439 P.2d 340.
We note that the present attorney of record for plaintiff in error was not the attorney who originated this appeal.
The writ of error is dismissed.
ENOCH and DUFFORD, JJ., concur.