(538 P.2d 1343)
No. 74-474Colorado Court of Appeals.
Decided June 17, 1975. Rehearing denied July 8, 1975. Certiorari denied September 2, 1975.
In appeal by defendant, Court of Appeals on its own motion, raised issue of whether it had jurisdiction to consider the appeal.
Appeal Dismissed
1. APPEAL AND ERROR — Notice of Appeal — Timely Filing — Mandatory — Jurisdictional — Parties — Waiver — Prohibited. The timely filing of a notice of appeal is mandatory and jurisdictional, and the parties may not by their independent action amend or waive this jurisdictional requirement.
2. Notice of Appeal — Stipulation — Extension of Time — Seventy-Five Days — Failure — Timely Filing — Thirty Days — Court of Appeals — Without Jurisdiction. Where the parties filed a stipulation with the trial court allowing themselves seventy-five days from the date of the trial court’s ruling on defendant’s motion for new trial within which to file a notice of appeal, but where the trial court did not grant any extension of time within which to file a notice of appeal, the failure of defendant to file a notice of appeal within thirty days from entry of the order denying her motion for new trial or within an extension of time as provided for in the appellate rules operates to remove the action from the jurisdiction of the Court of Appeals.
Appeal from the District Court of the County of Weld, Honorable Donald A. Carpenter, Judge.
Hayden, Ross Sweeney, William G. Ross, for plaintiffs-appellees.
Lewis E. Eagan, Charles P. Miller, James J. Scott, for defendant-appellant.
Division I.
Page 182
Opinion by JUDGE PIERCE.
On our own motion we have raised the issue of whether we have jurisdiction to hear this appeal. Having afforded counsel opportunity to brief the question, we now rule that the appeal is dismissed.
The operative facts are as follows. On or about May 22, 1974, judgment was rendered against defendant pursuant to a jury verdict. Timely motion for new trial was filed. On July 17, 1974, the parties filed a stipulation with the court allowing themselves 75 days from the date of the trial court’s ruling on the motion for new trial within which to file a notice of appeal. On July 18, 1974, the trial court ruled on the motion for new trial, but that order did not grant any extension of time within which to file a notice of appeal as provided by C.A.R. 4. See Laugesen v. Witkin Homes, Inc., 29 Colo. App. 58, 479 P.2d 289. On October 1, 1974, defendant filed her notice of appeal with the district court.
[1,2] The timely filing of a notice is mandatory and jurisdictional Chapman v. Miller, 29 Colo. App. 8, 476 P.2d 763. The parties may not by their independent action amend or waive this jurisdictional requirement. Hence, the failure to file a notice of appeal within 30 days from entry of the order denying the motion for new trial or within an extension of time as provided for in C.A.R. 4(a) removes this case from our jurisdiction Federal Lumber Co. v. Hanley, 33 Colo. App. 18, 515 P.2d 480.
Appeal dismissed.
JUDGE BERMAN concurs.
JUDGE COYTE dissents.
JUDGE COYTE respectfully dissenting:
The majority opinion is too stringent and prevents our making a decision on the merits, contrary to the spirit of the Colorado Rules of Civil Procedure. See Swan v. Zwahlen, 131 Colo. 184, 280 P.2d 439. Where objection is made at the proper time and place, and appears in the record, we have no alternative but to enforce the applicable rule and dismiss the appeal. Continental Air Lines, Inc. v. City County of Denver, 129 Colo. 1, 266 P.2d 400.
Page 183
In the instant case, the appellees have raised no objection to the jurisdiction of the court. Their attorney had advised that the stipulation, as to when the notice of appeal had to be filed, “was entered into in good faith without resort to the Colorado Appellate Rules or the effect thereunder by that stipulation.” He did not file a brief in support of the proposition that the case should be dismissed because of lack of jurisdiction.
Here, the jurisdictional problem arose because of the misapprehension by both of the attorneys as to the effect of the stipulation. The aforementioned stipulation placed all parties and the court below on notice that an appeal from an adverse ruling by the trial court was to be anticipated from either party. I am of the opinion that we should suspend the strict requirement of C.A.R. 3 by authority of C.A.R. 2 as was done in Service Oil Co. v. Rhodus, 179 Colo. 335, 500 P.2d 807 and hear the appeal on its merits.