Rivera v. Civil Service Commission of City and County of Denver
| Decision Date | 14 June 1974 |
| Docket Number | No. 74--110,74--110 |
| Parties | Salvador RIVERA et al., Plaintiffs-Appellees and Cross-Appellants, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF DENVER et al., Defendants-Appellants and Cross-Appellees. . II |
| Court | Colorado Court of Appeals |
Zarlengo & Kirshbaum, Denver, for named plaintiffs-appellees and cross-appellants.
Geer, Goodwin & Chesler, P.C., Denver, for similarly situated plaintiffs-appellees and cross-appellants.
Max P. Zall, City Atty., Brian H. Goral, and Robert D. Dowler, Asst. City Attys., Denver, for defendants-appellants and cross-appellees.
Before SILVERSTEIN, C.J., and PIERCE and SMITH, JJ.
This matter is before the court on motion of the unnamed plaintiffs-appellees for a stay of an order of the trial court pending appeal, pursuant to C.A.R. 8(a), and objections thereto by defendants-appellants.
The plaintiffs filed a complaint under C.R.C.P. 106(a)(4) to review a decision of defendant Civil Service Commission which denied a claim by the named plaintiffs that they were entitled to be promoted to the rank of sergeant in the Denver Police Department on the basis of the 1969 Eligibility Register. Included as plaintiffs were all other Denver Police Officers similarly situated. The action was commenced on August 24, 1973, and on that date the trial court entered an ex parte order which, Inter alia, enjoined defendants from conducting any examinations for the position of sergeant, until determination of the issues raised by the complaint. Motion to set aside the order was denied on February 1, 1974, and defendants appealed, docketing the case in this court on March 26, 1974.
On May 28, 1974, the trial court, on its own motion, modified the August 24, 1973, order by directing defendant Civil Service Commission to conduct a sergeants' examination with all convenient speed and to fill vacancies from the new eligibility list arising from the examination, preserving, however, the rights of the twelve named plaintiffs. Thereupon the unnamed plaintiffs, the police officers 'similarly situated,' whose rights, if any, were not protected by the May 28 order filed, the motion for stay of the order.
As grounds for their motion the movants assert that, since an appeal from the order of August 24 had been docketed in this court, the trial court was without jurisdiction to modify the order; and further, that if the order is not stayed, movants will suffer irreparable damage.
It is the general rule that when an appeal has been perfected, the trial court is without jurisdiction to make further orders in the cause relative to the order or judgment appealed from. Scott v. Watkins, 61 Colo. 244, 157 P. 3. See Davidson Chevrolet, Inc. v. Denver, 137 Colo. 575, 328 P.2d 377. We note, however that 'an appeal from an order granting or denying a preliminary injunction does not divest the district court of jurisdiction to proceed with the action on the merits.' 9 J. Moore, Federal Practice 739 (2d ed. 1973); Babcock & Wilcox Co. v. Foster Wheeler Corp., D.C., 54 F.R.D. 474.
Moreover, when the order appealed from is an injunction, the trial court, under C.R.C.P. 62(c), 'in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal . . ..' It has generally been held that this rule authorizes the trial court to enter orders which preserve the status quo, or otherwise protect the rights of the parties pending appeal, but does not give the trial court authority to enter an order which alters the rights granted, or created by the original order. See Woitchek v. Isenberg, 151 Colo. 544, 379 P.2d 392; Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (2nd Cir.); 7 J.Moore, Federal Practice at 62--18 et seq. (2d ed. 1974).
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