Opinion
No. 18,020.
Decided April 1, 1957.
Upon motion to strike transcript and dismiss writ of error.
Writ of Error Dismissed.
1. APPEAL AND ERROR — Transcript — Motion to Strike — Rules. Where the reporter's transcript was not lodged with the clerk of the trial court within the time required by Rule 112 (f), R.C.P., and was not certified by the trial judge, a motion in the Supreme Court to strike the transcript and dismiss the writ of error will be granted.
Error to the District Court of Alamosa County, Hon. George H. Blickhahn, Judge.
Mr. DAVID J. McKEE, for plaintiff in error.
Messrs. MOSES DESOUCHET, for defendant in error.
PLAINTIFF in error was defendant in the trial court. He seeks review and reversal of an order of the trial court denying his motion for reduction of support money and alimony payments previously ordered by the court. The order denying him relief in the lower court was entered on May 2, 1956. Plaintiff almost immediately thereafter came to this court on writ of error, but did not first comply with Rule 59 (b) and (f), R.C.P. Colo. Then on August 26, 1956, more than three months after the final order of the court, he attempted to correct the deficiencies in his record and filed in the trial court a motion for a new trial combining with it a motion for an order permitting him to lodge with the clerk of the trial court the reporter's transcript, R.C.P. Colo. 112 (f) provides:
"The party seeking reversal shall, within 60 days from the date of the judgment sought to be reviewed, lodge with the clerk of the trial court the reporter's transcript containing such parts of the proceedings and evidence as may have been designated. The clerk shall immediately give written notice thereof to opposing parties, who shall have 14 days thereafter in which to file written objections to such transcript. If none is filed, such transcript shall be signed and certified by the judge and become a part of the record in the supreme court. * * *"
The judge refused to sign and certify the transcript. Defendant nevertheless filed the same in this court on October 8, 1956.
Plaintiff has moved to strike the transcript and dismiss the writ of error. Without the transcript there is nothing to review. The order entered by the court was one which was addressed to the sound discretion of the trial court, and unless there is before us a certified transcript of the proceedings we are unable to state that the trial court abused its discretion or that it was arbitrary and capricious in the premises.
The transcript is stricken and the writ of error is dismissed.
MR. JUSTICE SUTTON does not participate.