Erbaugh v. Jacobson

342 P.2d 1026, 140 Colo. 182, 1959 Colo. LEXIS 330

• Court: Supreme Court of Colorado
• Decided: August 17, 1959
• Docket: No. 18,405
• Status: Published

Opinion

Mr. Chief Justice Knauss

delivered the opinion of the Court.

The sole question presented by this writ of error is:

DID THE TRIAL COURT ERR IN DISMISSING THE APPEAL OF PLAINTIFF IN ERROR FROM AN ADVERSE JUDGMENT RENDERED BY THE COUNTY COURT BECAUSE NO MOTION FOR A NEW TRIAL WAS FILED OR DISPENSED WITH BY THE COUNTY COURT?

This question is answered in the affirmative.

Defendant in error contends that Rule 59(f), R.C.P. Colo., applies to appeals in the district court from judgments of the county court. Niles v. Shinkle, 119 Colo. 458, 204 P. (2d) 1077, and Andrews, et al. v. Lull, et al., 139 Colo. 536, 341 P. (2d) 475, decided June 29, 1959, completely answer the contention thus made. Such appeals are pure creatures of statute and no motion for a new trial is provided for in such cases.

The only requisite for a trial de novo in the district court is that there be a final judgment in the county court and an appeal lodged in the district court within the time and pursuant to the requirements of the statute.

The trial court having dismissed the appeal taken by plaintiff in error under the mistaken theory that a motion for new trial in the county court was a prerequisite of trial de novo, the judgment of the trial court is reversed with directions to take such further action in the premises as are consistent with the pleadings on file.