Safeway v. Trinidad

Full title: Safeway Stores, Incorporated, a Maryland Corporation v. City of Trinidad…

Court: Colorado Court of Appeals. Division I

Date published: Jun 6, 1972

497 P.2d 1277 (Colo. App. 1972)

497 P.2d 1277

Opinion

No. 71-303

Decided June 6, 1972.

City council denied fermented malt beverage license to plaintiff. On review, district court remanded for further hearing without affirming or reversing action of city council. Plaintiff appealed.

Appeal Dismissed

1. APPEAL AND ERROR — Action to Review — Denial of License — Remand for Further Hearing — Not — Final, Appealable Order. In action seeking review of city council's denial of fermented malt beverage license to plaintiff where district court ordered the matter remanded to city council for further hearing but did not either affirm or reverse the denial of the license, such order is not a final, appealable order.

Appeal from the District Court of Las Animas County, Honorable Dean C. Mabry, Judge.

Bradley, Campbell Carney, Thomas J. Carney, Carmel A. Garlutzo, for plaintiff-appellant.

Harry R. Sayre, William G. Azar (on the brief) for defendant-appellee.

Opinion by CHIEF JUDGE SILVERSTEIN.

Safeway Stores, Inc., filed an application for a fermented malt beverage license for off-premises consumption in the City of Trinidad. After a hearing, the City Council denied the application. The applicant sought review in the district court. Hearing was held and the court entered the following order:

"IT IS ORDERED . . . that this matter be remanded to the City Council of the City of Trinidad for further hearing and determination, and that the said City Council make a determination as to whether this issue shall be granted, . . . ."

The order then directed the Council to make findings as to those matters contained in the state statute, particularly as to the needs of the neighborhood and the desires of the inhabitants. The court neither affirmed nor reversed the action of the Council.

[1] The above order, from which Safeway appeals, is not a final, appealable order. Under similar circumstances our Supreme Court stated, "In any event the district court must pass judgment upon the merits of the controversy, and until such judgment is entered there is nothing before us to affirm or reverse." Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 143 Colo. 590, 355 P.2d 83.

The appeal is therefore dismissed.

JUDGE COYTE and JUDGE SMITH concur.