Wheeler v. Garrett

13 Colo. 140

• Court: Supreme Court of Colorado
• Decided: April 15, 1889
• Status: Published

Opinion

Per Curiam.

This appeal must be stricken from the docket. There is no final judgment from which an appeal would lie. The judgment of dismissal and for costs originally entered, which was final, was vacated upon the application to reinstate. It is immaterial whether we speak of that application as a motion to reinstate or as a motion to vacate the final judgment of dismissal previously entered; for, in either event, the effect is precisely the same. The final judgment was thus set aside by order of the court.

The entry of the subsequent order — that is, the order appealed from, which vacated the prior order of reinstatement — did not have the effect to revive the final judgment of dismissal. The intention doubtless was to accomplish this result, but the judgment should have been re-entered. It had been formally set aside, and the ruling before us did not accomplish its reinstatement. The situation here appearing is, so far as this question is concerned, not unlike that in Owen v. Going, 7 Colo. 85.

The cause is stricken from, the docket, but either party may move in the court below for the re-entry of the final judgment which had previously been vacated, and proceedings may then be had as the parties shall be advised.

Stricken from docket.