Continental Air Lines, Inc. v. City and County of Denver
| Decision Date | 18 January 1954 |
| Docket Number | No. 17201,17201 |
| Citation | 266 P.2d 400,129 Colo. 1 |
| Parties | CONTINENTAL AIR LINES, Inc. v. CITY & COUNTY OF DENVER. |
| Court | Colorado Supreme Court |
Wolvington & Wormwood, Denver, for plaintiff in error.
John C. Banks, Ty R. Williams, Horace N. Hawkins, Jr., Denver, for defendant in error.
The parties are here in the same order as they appeared in the trial court, and we will herein refer to them as plaintiff and defendant.
The issue presently before our court arises over a motion filed on behalf of defendant to strike the reporter's transcript from the record on error. Ordinarily on motions of this kind it has not been our practice to note our determination thereof by formal written opinion; however, due to the importance of the question involved and to the frequency with which it has recently arisen here in manner very similar, if not identical, to that presented by the instant case, we have deemed it advisable, in this instance, to deviate from our established rule.
In this case judgment favorable to defendant was entered in the trial court on April 13, 1953. On July 13, 1953, plaintiff filed in this court its designation of parties and praecipe for writ of error, which was promptly issued. The reporter's transcript was not lodged with the clerk of the trial court until September 23, 1953, which was 165 days after the date of the judgment sought to be reviewed. Objections to the transcript, upon grounds to the same effect as those contained in defendant's motion here, were promptly filed in, and were overruled by, the court on October 30, 1953.
Defendant's motion to strike the transcript, after the setting forth of the foregoing historical background, is based upon the grounds that said transcript was not lodged with the clerk of the trial court within the period of 60 days from the date of entry of judgment therein, or within any period of enlargement made by order of court within said 60 days, or at all, in violation of the rules of civil procedure relating to the lodging of the reporter's transcripts.
Plaintiff contends that defendant's motion to strike is without merit and that plaintiff's position here is not subject to such an attack for the reason that upon its inability to procure its record on error prior to the expiration of 60 days following the date of issuance of writ of error, it has, from time to time, sought and procured extensions of time from our Court within which to file its record on error.
Admittedly, plaintiff did not lodge its transcript with the clerk of the trial court within 60 days following the entry of judgment; it neither sought nor procured any extension of time within which to lodge the transcript; and that said transcript was not lodged until approximately 163 days following the date of the entry of judgment. The record shows that plaintiff has procured from our Court various extensions of time within which to file its record on error with the clerk of this Court, the first of which was on September 23, 1953, a nunc pro tunc order as of September 12, 1953.
Solution of the problem involves consideration primarily of three rules of civil procedure: 111(c), as amended; 112, particularly subdivision (f) thereof; and 6(b), Colorado Rules of Civil Procedure.
Rule 111(c) was slightly amended in 1945 so as to require a designation of parties upon filing of praecipe for writ of error, but with this amendment we are not here concerned. The rule, original and as amended in 1945, was quite brief, by reason of which uncertainty arose as to its proper construction and particularly in regard to its coordination with the provisions of rule 112. In an effort at clarification, it was rather extensively amended, effective as of February 12, 1953. A cursory study thereof will solve the problem herein presented, and an adherence thereto will prevent the constant reoccurrence of similar difficulties. The pertinent portion of the rule, as amended, is as follows:
(Emphasis supplied.)
It will be noted that the rule properly designates the documents required to be filed in this court as the 'record on error.' It is elementary, of course, that the record on error comprises, (1) copies of the designated pleadings from the trial court certified by the clerk, and (2) the reporter's transcript. Older practitioners will recall that in former days these were referred to as the record proper and bill of exceptions. Under the rule it is required that the record on error when procured pursuant to writ of error, shall be filed within 60 days from the receipt of such writ or within such other or additional time as 'the supreme court may order'. Then follows the requirement that the party procuring such writ of error 'shall do any and all things necessary under Rule 112 to obtain such record on error.' If it be impossible to procure the record on error within time to allow its filing in this Court within the 60-day period, upon application, our Court may, and frequently does, extend the time, but the compilation of the record on error is to be accomplished by and within the trial court. The rule, therefore, further provides that the trial court shall have jurisdiction 'to make any and all orders relative to such record on error as may be proper under Rule 112', subject only to the limitation that it may not extend the time for the preparation of such record on error 'or any part thereof' beyond the time fixed by our Court for its filing with the clerk of our Court. Clearly the intention of the rule is that the trial court shall have supervision of the preparation...
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People v. Conley, 88CA0313
...is required to take the necessary steps to provide an adequate record for review. C.A.R. 11(a); Continental Air Lines, Inc. v. City & County of Denver, 129 Colo. 1, 266 P.2d 400 (1954). In those circumstances in which a stenographic transcript is not available, C.A.R. 10(c) provides that th......
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Halliburton v. Public Service Co. of Colorado, 88CA1368
...to take all steps necessary under the appellate rules to obtain the necessary record for review. Continental Air Lines, Inc. v. City & County of Denver, 129 Colo. 1, 266 P.2d 400 (1954). C.A.R. 10(c) and (e) require, in circumstances in which a stenographic transcript is not available, that......
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