Denver Feed Co. v. Winters

• Decision Date: 08 April 1963
• Docket Number: No. 20470,20470
• Citation: 152 Colo. 103,380 P.2d 678
• Parties: DENVER FEED CO., Plaintiff in Error, v. Frank WINTERS and Josephine Winters, Defendants in Error.
• Court: Colorado Supreme Court

Page 678

380 P.2d 678

152 Colo. 103

DENVER FEED CO., Plaintiff in Error, v. Frank WINTERS and Josephine Winters, Defendants in Error.

No. 20470.

Supreme Court of Colorado, En Banc.

April 8, 1963.

Rehearing Denied April 29, 1963.

Martin Zerobnick, Leo T. Zuckerman, Denver, for plaintiff in error.

No appearance for defendants in error.

MOORE, Justice.

This action involves priority of lien rights which are asserted by the holders of promissory notes secured by separate chattel mortgages on livestock. The judgment of the trial court, which plaintiff in error seeks to have reversed, awarded to defendants in error possession of the cattle which were subject to the said chattel mortgages, thus adjudging prior lien rights to defendants in error.

On May 22, 1962, at which time the court decided the case, it was ordered that 'the Plaintiff Denver Feed Co. is granted 10 days in which to file a Motion for New Trial.' No motion for a new trial was ever filed. A minute order is in the record before us from which it appears that on June 11, 1962, the court held a hearing on a 'Motion for Amendment of Judgment' which was filed by the plaintiff in error. The record does not contain a copy of this motion but the minute order last referred to contains the following: 'IT IS ORDERED that the Motion to Amend Judgment is hereby overruled.' Thereafter, on June 20, the court entered a formal written judgment and decree in which the necessity for filing a motion for new trial was not dispensed with and no such motion was filed.

This court has repeatedly held that writs of error will be dismissed for failure to comply with Rule 59, R.C.P.Colo., unless the necessity for filing a motion for new trial is expressly dispensed with by order of the trial court. In Noice v. Jorgensen, Colo., 378 P.2d 834, it was held that the filing of objections to findings of the trial court clearly do not serve as a motion for new trial and do not constitute a compliance with Rule 59. From the opinion in that case we quote the following:

'Rule 52(b) R.C.P. Colo. states, inter alia, that in a trial to the court, without a jury, objections to the court's findings are not necessary in order to preserve for appellate review 'the question of sufficiency of the evidence to support the findings * * *.' See C. I. T. Corporation v. K. & S. Finance, 111 Colo. 378, 142 P.2d 1005. Nor is it essential to an appeal that there be any motion to amend. However, this rule does authorize and permit the filing not later than ten days after entry of judgment of a motion to amend the court's findings, or to make additional findings, and further provides that the court may amend its judgment...