Carroll v. Fitzsimmons

371 P.2d 441, 150 Colo. 172, 1962 Colo. LEXIS 313

• Court: Supreme Court of Colorado
• Decided: May 14, 1962
• Docket: 19953
• Status: Published

Opinion

Opinion by

Mr. Justice Hall.

The parties appear here in the same order as in the trial court. We refer to them as plaintiff and defendants.

Plaintiff in his complaint seeks damages for personal injuries arising out of the alleged negligence of defendants.

Defendants filed motions to dismiss the complaint for failure to state a claim upon which relief can be granted. Orders were entered granting these motions. No judgment- of dismissal was entered.

The plaintiff is here by writ of error seeking reversal.

In Marzec v. Fremont County, 136 Colo. 250, 315 P. (2d) 987, this court said:

“ * * * There is nothing in the record to indicate that the plaintiff was given an opportunity to amend his complaint as he had a right to do under Rule 15, R.C.P. Colo.; nothing to indicate that the plaintiff elected to stand on his complaint; nothing to indicate that a judgment was ever entered or a motion for a new trial filed or dispensed with.

“There being no judgment before us to review, affirm, reverse or modify, the writ of error must be dismissed. See Nutter v. Wright, 132 Colo. 304, 287 P. (2d) 655, and the numerous decisions of this court therein referred to.”

The foregoing language is applicable to the situation presented by the record before us in this case.

The writ of error is dismissed without prejudice to pursuing further appropriate proceedings in the trial court and this court.

Mr. Justice Sutton not participating.