Commercial Credit Corp. v. Frederick, 23108
| Decision Date | 02 October 1967 |
| Docket Number | No. 23108,23108 |
| Citation | 431 P.2d 1016,164 Colo. 5 |
| Parties | COMMERCIAL CREDIT CORPORATION, Plaintiff in Error, v. C. T. FREDERICK and Shirley R. Frederick, Defendants in Error. |
| Court | Colorado Supreme Court |
Hellerstein & Hellerstein, F. J. Manning, Denver, for plaintiff in error.
Bradley, Campbell, Carney & Johnson, Golden, for defendant in error.
Commercial Credit Corporation, hereinafter referred to as the plaintiff, brought an action against C.T. and Shirley R. Frederick. The Fredericks will hereinafter be referred to as the defendants. Upon trial, after plaintiff had presented its evidence, the trial court granted the defendants' motion to dismiss and accordingly at that time, namely May 4, 1967, entered formal judgment in favor of the defendants.
On or about May 23, 1967 plaintiff filed a motion for a new trial. A hearing on this motion was then set for August 11, 1967. On July 24, 1967, however, plaintiff sued out a writ of error from this Court. When the motion for new trial came on for hearing on August 11, 1967, the defendants questioned the jurisdiction of the trial court to hear the matter inasmuch as a writ of error had previously issued from this Court. The trial court agreed with counsel for the defendants and concluded that it had no power to proceed because of the issuance of the aforementioned writ of error.
Faced with this impasse, plaintiff then filed a motion in this Court seeking to break the log jam thus created. Specifically, in the writ of error which it had previously sued out, plaintiff filed a motion requesting us to direct the trial court to hear and determine the pending motion for a new trial. The defendants have since filed their objections to the entry of such an order and this motion now awaits our determination.
R.C.P.Colo. 111(b) provides that '(n)o writ of error shall be issued after 3 months from the entry of the judgment complained of * * *' It has long been the rule that where there has been an actual trial which culminates in an entry of judgment, and a motion for new trial is thereafter filed, until such time as the motion for new trial has been determined the judgment is not final within the meaning of Rule 111(b) and that the time when the losing party's motion for a new trial is denied marks the date when the judgment becomes final for the prosecution of a writ of error. King v. Williams, 131 Colo. 286, 281 P.2d 163; Pueblo v. Mace, 130 Colo. 162, 273 P.2d 1015; and Bankers Co. v. Hall, 116 Colo. 566, 183 P.2d 986.
Counsel for plaintiff claims, however, that they are nonetheless uncertain as to whether the three months period of time within which they could sue out their writ of error dates from the time when judgment actually entered, namely May 4, 1967, or would date from the time when the trial court denied their motion for a new trial. Being uncertain, and at the same time desirous of protecting their right to review, counsel therefore proceeded to sue out a writ of error on the premise that such had to be obtained within three months from the date judgment entered. It was for this reason that our writ issued before the trial court ruled on plaintiff's motion for new trial.
The uncertainty referred to above is said to arise from our recent ...
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Marriage of Ross, In re, 82CA0986
...The precise issue before us apparently has not been addressed in the written opinions of our courts. In Commercial Credit Corp. v. Frederick, 164 Colo. 5, 431 P.2d 1016 (1967), the plaintiff had filed a motion for new trial but then sought appellate review in the Supreme Court. In that case......
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Dill v. County Court In and For City and County of Denver, 74--450
...appeal, this is not a case in which something has been done too soon, resulting in a premature appeal. See e.g., Commercial Credit Corp. v. Frederick, 164 Colo. 5, 431 P.2d 1016. This is a case in which nearly everything has been done too late. This court is, therefore, without jurisdiction......
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...10, 488 P.2d 83; See also Denver v. Board of Adjustment, 31 Colo. App. 324, 505 P.2d 44. 19. See Commercial Credit Corp. v. Frederick, 164 Colo. 5, 431 P.2d 1016. 20. See Cox v. Adams, 171 Colo. 37, 464 P.2d 513; Laugesen v. Witkin Homes, Inc., 29 Colo. App. 58, 479 P.2d 289. 21. See Levine......