Roberts v. Strong

206 P. 1073, 71 Colo. 414

• Court: Supreme Court of Colorado
• Decided: May 1, 1922
• Docket: No. 10,282
• Status: Published

Opinion

Mr. Justice Burke

delivered the opinion of the court.

Defendant in error filed her claim against the estate of W. C. Roberts, deceased. The claim was allowed as a claim of the fifth class. Thereafter she filed her petition praying:

“That the order heretofore entered allowing said claim be set aside, that your petitioner be allowed to withdraw said claim so filed in this court against said estate, and be allowed to go hence and seek her equitable relief in a court of competent jurisdiction.”

After answer and replication a hearing was had and testimony taken, whereupon the court ordered: “That the petitioner be allowed to withdraw her claim as prayed in petition.”

To review that order the administratrix sues out this writ and the cause is now before us on motion to dismiss because the foregoing order was not a final judgment.

Following the rule announced in Stevens v. Solid Muldoon Printing Co., 7 Colo. 86, 1 Pac. 904, the motion must be sustained. The order which the administratrix seeks to' have reviewed is a mere permission to withdraw a claim. The order allowing the claim does not appear to have been set aside, nor the claim yet .withdrawn so far as this record discloses. This in no respect comes within the definition of a final judgment as given in Goodknight v. Harper, 70 Colo. 41, 197 Pac. 237, and other decisions of this court. The writ is accordingly dismissed.

Mr. Chief Justice Scott not participating.

Mr. Justice Teller sitting as Chief Justice.