Felt v. Cook

A motion is made to dismiss the appeal on the ground that it was not taken in time. Section 3301, Revised Statutes 1898, provides that an appeal may be taken within six months from the entry of judgment or order appealed from. The findings and decree were filed and entered July 11, 1905, and, on the day following, a notice of such filing and entry, was served. A motion for a new trial, on the ground of newly discovered evidence, was served and filed February 28, 1906, seven and one-half months after service of notice of entry of judgment. On March 10, 1906, the motion for a new trial was denied. On June 29, 1906, a notice of appeal was served and filed, appealing from the judgment entered July 11, 1905, and from the order made March 10, 1906. The statute provides (section 3294) that the party, intending to move for a new trial, must, within five days after the verdict of the jury, or after notice of the decision of the court or referee, if the action- were tried without a jury, serve and file a notice of such intention. The time in which to^ serve or file a notice of such a motion for a new trial was not enlarged.

Section 3005, provides that when, for any reason satisfac-*301tpry to tbe court, or tbe judge thereof, tbe party aggrieved bas failed to apply for a new trial or other relief sought during tbe term at which such judgment, order, or proceeding complained of was taken, tbe court, or judge thereof, in vacation, may grant tbe relief upon tbe application made within 'a reasonable time not exceeding six months after tbe adjournment of tbe term. It is claimed by the appellant that bis notice of motion was filed pursuant to- this section. Tbe record does not disclose that any application was made for leave to file it. It was filed and served by tbe appellant as matter of •course, without leave or showing. Tbe aggrieved party may, under tbe five days’ statute, and within tbe time therein specified or enlarged, as matter of right, serve and file a notice of motion for a new trial; but be may not dp so under section 3005. To invoke tbe aid and jurisdiction of tbe court under tbe latter section it is requisite that an application and showing be made to tbe court setting forth some grounds why the motion was not made, and tbe relief sought within tbe five days’ statute.

Furthermore, tbe notice for new trial was filed seven and one-half months after tbe judgment was taken. Tbe statute provides that tbe relief may be granted upon application made within a reasonable time not exceeding six months after tbe adjournment of tbe term. It is not made to appear when tbe term during which tbe judgment was taken, commenced, or ended, or adjourned. There is no statute nor constitutional provision fixing tbe commencement or ending of tbe term óf tbe district courts. We cannot take judicial knowledge of when tbe term during which tbe judgment was taken adjourned. Appellant is required to show affirmatively that bis application was made within six months, after tbe adjournment of tbe term. This be bas failed to do. For aught "that appears, tbe term adjourned tbe day tbe judgment was taken. We cannot presume that it continued for a month and a half thereafter before adjournment. Filing to show that an application or showing was made for leave to file a motion for mew trial, and) failing to show tha? tbe application was made within tbe time allowed by tbe statute, tbe appellant *302was not in position to invoke tbe jurisdiction of tbe court to entertain tbe motion. (1 Spelling, New Tidal, sections 24, 355; Clark v. Perry, 17 Colo. 56, 28 Pac. 329.) Tbis court has repeatedly beld, under tbe statute, that an appeal lies only from the judgment, and not from an order denying or granting a motion for a new trial; that a judgment is not final while a motion for a new trial, made within tbe time allowed by law, is pending and undisposed of; and that tbe appeal may be taken within six months after the overruling of such motion for a new trial. But the appellant here has not made nor filed any motion for a new trial as by law provided. What he did in tbe premises was as though .no motion for a new trial had been attempted. • ’ Tbe finality of tbe judgment was, therefore, not prevented nor stayed by any motion for a new trial, and hence the six months in which appellant was required to prosecute the appeal began to run from the entry of tbe judgment. Tbe appeal was not taken until eleven and one-half months thereafter.

The appeal is therefore dismissed, with costs.