Opinion
No. 11,982.
Decided September 24, 1928.
Proceeding in eminent domain.
Writ of Error Dismissed.
1. APPEAL AND ERROR — Eminent Domain — Final Judgment. Order of the trial court determining that a condemnation proceeding will lie and appointing commissioners, is not a final, but an interlocutory, order, to which a writ of error will not lie.
2. Dismissal. A writ of error prematurely issued will be dismissed.
Error to the District Court of the City and County of Denver, Hon. Henry Bray, Judge.
Mr. VICTOR ARTHUR MILLER, Mr. JOHN R. ADAMS, for plaintiff in error.
Mr. THOMAS H. GIBSON, Mr. FRANK L. HAYS, for defendant in error.
THE City and County of Denver brought condemnation proceedings. Roland Miller, one of those whose lands were sought to be condemned for street purposes, filed an answer in the nature of a demurrer attacking the sufficiency of the petition and the validity of the proceeding. His objections were overruled, and the court thereupon appointed commissioners in condemnation with the usual powers and duties. To that order of appointment Miller sued out this writ of error. He contends that such order is a final order; whereas, the city contends that the order is not a final determination of the proceeding, and, therefore, that the writ of error is premature.
Whatever may be the holding in other jurisdictions, in this state an order of the trial court determining that the condemnation proceeding will lie and appointing commissioners is not a final, but an interlocutory, order, to which a writ of error will not lie. After the final determination of the proceeding and the entry of a final decree, a writ of error will present for review all the objections now urged. Burlington Colorado R. R. Co. v. Colorado Eastern R. R. Co., 45 Colo. 222, 100 Pac. 607.
Counsel cite, as sustaining the contrary position, Denver Power and I. Co. v. Denver Rio Grande R. R. Co., 30 Colo. 204, 69 Pac. 568. But there the judgment denied the petitioner's right to condemn, which, of course, finally disposed of the proceeding.
The writ of error is dismissed.