Opinion
No. C-641
Decided March 1, 1976.
Certiorari to review Anlauf Lumber Co. v. West-Fir Studs, Inc., 35 Colo. App. 119, 531 P.2d 980, in which court of appeals dismissed the appeal from the trial court judgment — in favor of lessor for unpaid rent less setoff judgment — which denied lessees' motion for new trial because no accompanying memorandum of law was filed with the motion.
Affirmed
1. NEW TRIAL — Memorandum in Support — Not Mandatory — Discretionary. Memorandum in support of a motion for new trial is not mandatory; actually, trial judge is vested with discretion to consider a motion for new trial without a memorandum.
2. Memorandum of Law — Not Filed — Denial of Motion — Non-compliance — No Motion. Where no memorandum of law was filed in support of motion for new trial, nor was any order sought or issued under C.R.C.P. 59 which provides that trial court has authority to permit a party to proceed without such a brief, upon trial court's denial of motion for new trial, not on the merits, but for non-compliance with rule pertaining to motions for new trial, it was as though no motion for new trial was ever filed.
3. APPEAL AND ERROR — New Trial — No Valid Motion — Nothing to be Considered — Review. Where there was no valid motion for new trial, there was nothing to be considered on review.
Certiorari to the Colorado Court of Appeals
Worth F. Shrimpton, for petitioners.
Cosgriff, Dunn, French Seavy, V. G. Seavy, Jr., Peter Cosgriff, for respondent.
We granted certiorari to review Anlauf Lumber Co. v. West-Fir Studs, Inc., 35 Colo. App. 119, 531 P.2d 980 (1974), in which the court of appeals dismissed the appeal from the trial court judgment. We affirm.
Defendants-appellants West-Fir Studs and Craig Lumber Company (petitioners herein) sought to appeal a judgment in favor of plaintiff-appellee (respondent herein) for unpaid rent in the sum of $6,124.70, less a setoff judgment of $1,249.91. They also appeal the denial of their other counterclaims.
The trial court had denied petitioners' motion for a new trial because no accompanying memorandum of law was filed with the motion. See C.R.C.P. 59(a). The court of appeals, on its own motion, dismissed the appeal on the same grounds.
[1] While we affirm the court of appeals' decision, we granted certiorari in order to clarify misleading language within the opinion stating that a memorandum in support of a motion for new trial is mandatory. This is an erroneous interpretation of the rule and nullifies the discretion in the trial judge to consider a motion for new trial without a memorandum.
Rule 59 provides that the court has the authority to permit a party to proceed without such a brief. In this case no such order was either sought or issued and the trial court, within its discretion, denied the motion.
[2,3] We have no quarrel with the remaining portions of the court of appeals' opinion and agree with the language below:
". . . Where, as here, the court denied the motion, not on the merits, but for noncompliance with the Rule, it is as though no motion for new trial was ever filed. See Martin v. Opdyke Agency, Inc., 156 Colo. 316, 398 P.2d 971. There being no motion for new trial, there is nothing to be considered by this court on review. C.R.C.P. 59(f)."
Judgment affirmed.
MR. JUSTICE LEE does not participate.