Opinion
No. 17,689.
Decided January 3, 1956.
An action involving the interest of an unborn child. The petition was dismissed and the court granted petitioner's motion for a new trial. The respondent brings error.
Writ of Error Dismissed.
1. APPEAL AND ERROR — New Trial — Final Judgment. Where a motion for a new trial is granted, the issues stand undisposed of, and the granting of the motion is not a final judgment, hence a writ of error will not lie.
Error to the County Court of Pueblo County, Hon. Hubert Glover, Judge.
Mr. JOHN A. McCARTHY, for plaintiff in error.
Messrs. JENKINS, STEWART TRUST, for defendant in error.
CHARLOTTE TRUJILLO filed her petition in the county court of Pueblo county, charging Robert Gonzales with contributing to the dependency of her unborn child. Upon trial to the court the petition was dismissed. Petitioner's motion for a new trial was granted, and Robert Gonzales is here by writ of error seeking a judgment of this court reversing the trial court's action in granting petitioner's motion for a new trial.
Our Rule 111, R.C.P. Colo. provides, inter alia, that a writ of error shall lie from the supreme court to a final judgment of any district, county or juvenile court in all actions, and the only question presented is whether the granting of a motion for a new trial is a final judgment.
When a motion for a new trial is granted, the issues stand undisposed of as if the cause had never been tried. Hunt v. United States, 53 F.2d 333.
Granting a motion for a new trial is not a final judgment, and hence is not reviewable on appeal (writ of error). Bernhardt v. United States, 169 F.2d 983.
An appeal (writ of error) does not lie from an order granting or denying a motion for a new trial. Ford Motor Company v. Busam Motor Sales, Inc., 185 F.2d 531.
It is well settled that an order granting or denying a new trial is not reviewable on appeal (writ of error). Kanaster v. Chrysler Corporation, 195 F.2d 104.
The record herein containing no final judgment, the writ of error is dismissed.