Love v. Rocky Mountain Kennel Club, 72--354

• Decision Date: 21 August 1973
• Docket Number: No. 72--354,72--354
• Citation: 514 P.2d 336,33 Colo.App. 4
• Parties: Mary Belle LOVE, Plaintiff-Appellee, v. ROCKY MOUNTAIN KENNEL CLUB, a Colorado corporation, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 336

514 P.2d 336

33 Colo.App. 4

Mary Belle LOVE, Plaintiff-Appellee, v. ROCKY MOUNTAIN KENNEL CLUB, a Colorado corporation,

Defendant-Appellant.

No. 72--354.

Colorado Court of Appeals, Div. I.

Aug. 21, 1973.

Coggan & Kollr, Morton L. Coggan, Brenman, Sobol & Baum Melvin Rossman, Denver, for plaintiff-appellee.

Rector & Melat, Leo W. Rector, Colorado Springs, for defendant-appellant.

SILVERSTEIN, Chief Judge.

This is an appeal from an order denying defendant's motion to set aside a default judgment.

Plaintiff, Love, allegedly sustained injuries in a slip-and-fall accident while on the property of the defendant, Rocky Mountain Kennel Club. On January 30, 1970, Love commenced action against the Kennel Club by service of summons and complaint and by timely filing of the complaint as required by C.R.C.P. 3(a). Defendant entered no appearance.

Nothing further transpired until January 27, 1971, when the Denver District Court, pursuant to its local Rule 21, issued a notice to plaintiff to show cause why the case should not be dismissed for lack of prosecution. Plaintiff did not respond thereto and, on March 2, 1971, the case was dismissed.

Nearly seven months later, on September 30, 1971, plaintiff's then attorney filed a motion to reinstate the case, which motion was heard and granted Ex parte. Thereafter, on December 2, 1971, the trial court entered a default judgment against the defendant in the amount of $7,500. Defendant made its initial appearance by filing a motion to set aside the default judgment. The motion was denied on September 25, 1972, and this appeal followed. We reverse.

We agree with defendant's contention that the trial court erroneously granted plaintiff's motion to reinstate the case.

A dismissal without prejudice for failure to prosecute is a final order. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49; See also Mizar v. Jones, 157 Colo. 535, 403 P.2d 767. Therefore, upon dismissal of her action on March 2, 1971, plaintiff had three alternatives available: (1) appeal the order of dismissal; (2) move for reinstatement; or (3) initiate a new action by filing a new complaint.

Plaintiff elected to pursue the second alternative for reinstatement. However, motions for relief from a final order are governed by C.R.C.P. 60(b), under which the time for filing such motions is expressly limited to six months. AA Construction Co. v. Gould, 28 Colo.App. 161, 470 P.2d 916; C.R.C.P. 6(b). Plaintiff's motion for reinstatement was not timely filed within the specified six-month period following entry of the order of dismissal. Consequently, the trial...