ERBAUGH v. JACOBSON, 140 Colo. 182 (1959)

(342 P.2d 1026)

JAMES A. ERBAUGH, AS ADMINISTRATOR, ETC. v. HARVEY W. JACOBSON.

No. 18,405.Supreme Court of Colorado.
Decided August 17, 1959.

From dismissal of an appeal from the county court to the district court, the plaintiff brings error.

Reversed.

1. COURTS — Appeals — Trial De Novo — Statute — Rules. Rule 59 (f), R.C.P. Colo., has no application to appeals from the county to the district court, such appeals are pure creatures of statute and no motion for a new trial is required in such cases.

2. PRACTICE AND PROCEDURE — Appeals from County Court — Requisites. The only requisite for a trial de novo in the district court is that there be a final judgment in the county court and an appeal lodged in the district court within the time and pursuant to the requirements of the statute.

Error to the District Court of the City and County of Denver, Hon. Edward J. Keating, Judge.

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Mr. ALBERT L. VOGL, Mr. FRANK C. LOWE, Mr. WILLIAM F. REYNARD, for plaintiff in error.

Messrs. McDOUGAL ROGERS, Mr. FRANCIS W. BROWN, for defendant in error.

En Banc.

MR. CHIEF JUSTICE KNAUSS delivered the opinion of the Court.

THE sole question presented by this writ of error is:

DID THE TRIAL COURT ERR IN DISMISSING THE APPEAL OF PLAINTIFF IN ERROR FROM AN ADVERSE JUDGMENT RENDERED BY THE COUNTY COURT BECAUSE NO MOTION FOR A NEW TRIAL WAS FILED OR DISPENSED WITH BY THE COUNTY COURT?

This question is answered in the affirmative.

[1] Defendant in error contends that Rule 59 (f), R.C.P. Colo., applies to appeals in the district court from judgments of the county court. Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077, an Andrews, et al. v. Lull, et al., 139 Colo. 536, 341 P.2d 475, decided June 29, 1959, completely answer the contention thus made. Such appeals are pure creatures of statute and no motion for a new trial is provided for in such cases.

[2] The only requisite for a trial de novo in the district court is that there be a final judgment in the county court and an appeal lodged in the district court within the time and pursuant to the requirements of the statute.

The trial court having dismissed the appeal taken by plaintiff in error under the mistaken theory that a motion for new trial in the county court was a prerequisite of trial de novo, the judgment of the trial court is reversed with directions to take such further action in the premises as are consistent with the pleadings on file.

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