Helmick v. Consolidated Mutual Water Co.

372 P.2d 160, 150 Colo. 243, 1962 Colo. LEXIS 325

• Court: Supreme Court of Colorado
• Decided: June 11, 1962
• Docket: No. 20,001
• Status: Published

Opinion

Opinion by

Mr. Justice Pringle.

Plaintiff in error was plaintiff, in the trial court and defendant in error was defendant. They will be referred to here as they there appeared.

Plaintiff is a resident and property owner of Jefferson County. He purchases water from the defendant for domestic use. While he was on a summer vacation in 1960 he failed to pay his water bill within 25 days and was thereupon assessed a penalty as prescribed by the rules and regulations of the defendant.

Plaintiff declined to pay the penalty, and during the controversy with the defendant thereover incurred two other penalty assessments by reason of the refusal of defendant to accept further payments until the original penalty assessment was paid. The total amount of the assessments in controversy was $1.51. Thereafter the defendant notified the plaintiff that unless the penalty assessment was paid it would shut off his water.

Plaintiff continued his refusal to pay the penalties and the defendant carried out its threat to discontinue his water service. Thereafter plaintiff brought this action, requesting an injunction to prevent the defendant from discontinuing his water service. A temporary restraining order was issued and the matter set for hearing on temporary injunction.

At the hearing the court dismissed the restraining order, denied the request for injunction and entered judgment for the defendant. Plaintiff is here on writ of error.

Under the Rules of Civil Procedure a new trial or an order dispensing therewith is a prerequisite to the right of a party to a review in this Court. This rule applies in cases where a review is sought of a pure question of law as well as of questions of fact. Kopff v. Judd, 134 Colo. 330, 304 P. (2d) 623; Boyd v. Adjustment Bureau, Inc., 148 Colo. 233, 365 P. (2d) 813.

The record before us discloses that no motion for new trial was ever filed nor was an order dispensing therewith entered by the trial court.

Accordingly, the writ of error is dismissed.

Mr. Justice Hall and Mr. Justice Sutton concur.