Gavin v. Kniffen

254 P. 999, 81 Colo. 269, 1927 Colo. LEXIS 344

• Court: Supreme Court of Colorado
• Decided: April 4, 1927
• Docket: No. 11,810.
• Status: Published

Opinion

Me. Justice Denison

delivered the opinion of the court.

The defendant in error moves to strike the bill of exceptions. The motion must be denied. The judgment was rendered December 15, 1926; sixty days were given for a bill of exceptions. This time expired February 13, 1927, which was Sunday, therefore the time was extended till Monday, the 14th. Elliott Co. v. Courtrighl Co., 67 Colo. 449, 451, 182 Pac. 882; Code 1921, sec. 417. An order extending the time was obtained that day. The court had power to make this order. Code 1921, § 420; Ransom v. Holland, 66 Colo. 420, 182 Pac. 885.

The defendant in error claims that the said order was a nullity because he had no notice of the motion. The facts are that he was called to court by telephone and attended. He objected that the motion was not made in time, but he did not then object to the lack of written notice as required by the Code. We do not think he can now make that objection.

In Ransom v. Holland, supra, the order was made without any notice whatever, and without the presence of the opposing attorney. In Mogote-Northeastern Co. v. Gallegos, 69 Colo. 221, 193 Pac. 670, we held that the objection that such motion came too late might be waived and was waived unless the objection was stated, and it would seem that the failure to give notice might with equal justice be said to be waived in the same way.

Motion denied.

Me. Chiee Justice Burke, Mr. Justice Whiteord and Mr. Justice Sheaeor concur.