Davidson Chevrolet, Inc., et al. v. City and County of Denver, et al.

Colorado Supreme Court1958-07-14No. No. 18,599

137 Colo. 575328 P.2d 377

Summary · law.co

Holding. The trial court lacked jurisdiction to vacate the original judgment or conduct a new trial after the case was pending before the appellate court on writ of error. The proceedings are remanded with directions to void the vacation of the first judgment and the second judgment, and to affirm the first judgment's validity.

Denver obtained a judgment against Davidson Chevrolet in district court, then appealed by writ of error to this court. While the case was pending on appeal, Denver moved to dismiss its own writ of error without prejudice, which this court granted. However, the trial court then vacated the original judgment and held a new trial, resulting in a different judgment of dismissal in Denver's favor. Davidson Chevrolet challenges these actions, arguing the trial court lacked authority to take them.

The court agreed with Davidson Chevrolet's position. Once a case is before the appellate court on writ of error, the trial court loses jurisdiction to modify the judgment or conduct further proceedings on the merits. The dismissal without prejudice of Denver's appeal left the original judgment intact and in full force. Denver's proper remedy would have been to file a new writ of error within the appropriate time period. By vacating the first judgment and entering a second one, the trial court acted without jurisdiction, rendering those actions void and ineffectual.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Trial court jurisdiction after writ of error filed
Effect of dismissing writ of error without prejudice
Validity of judgment modifications made during appellate review
Proper procedure for appealing after dismissal without prejudice

Procedural posture

The trial court vacated an original judgment and entered a new judgment while the case was pending on writ of error before the appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Per Curiam.

Denver sued out a writ of error, seeking to have reversed an adverse judgment which it suffered in the district court on December 4, 1957. The district court vacated the judgment on January 3, 1958, while the case (Denver v. Davidson Chevrolet, Inc., et al., No. 18,497) was pending here on error.

On January 17, 1958, Denver filed its motion to dismiss without prejudice its writ of error. On January 30, 1958, the motion was granted, and on March 3, 1958, remittitur issued out of this court, in part directing “that the judgment of said District Court stand in full force and effect; and that this cause be remanded to said District Court for such other and further proceedings, according to law, as shall be necessary to the final execution of the judgment of said District Court in the cause, notwithstanding the said writ of error.”

After the judgment was vacated, and on February 25, ,1958, the district court proceeded with the trial of the case. At the conclusion of the trial on March 3, 1958, the trial court entered a judgment of dismissal against Davidson Chevrolet, Inc., et al., and in favor of Denver. Davidson Chevrolet, Inc., by its writ of error maintains that the vacation of the judgment and the entry of the judgment of dismissal under these circumstances were acts performed by the trial court at a time when it was without jurisdiction to so do.

We agree with the contention of Davidson Chevrolet, Inc. Once the case was in this court on writ of error the trial court was without jurisdiction to vacate the judgment or commence the trial of the case which eventuated in the entry of another or different judgment.

The dismissal of the writ of error, even though without prejudice, left the first judgment in full force and effect. Had Denver, having successfully moved to dismiss without prejudice its writ of error, filed a second writ of error in apt time, we then would have reviewed the matter. Where the unsuccessful party in the trial court sues out a writ of error, and thereafter files a motion to dismiss the writ of error without prejudice, to which we assent by dismissing without prejudice, all that remains for the party seeking dismissal is to file anew its writ of error; otherwise, the judgment sought to be reversed originally becomes final and effectual.

All that remained to be done in this case was to carry out the mandate of the remittitur heretofore issued. Dismissal without prejudice in no way could have stayed the hand of the successful party in proceeding with the rights adjudicated to it.

Vacation of the first judgment and the entry of a new judgment, having been accomplished without the trial court having jurisdiction so to do, were ineffectual, null and void. The proceedings are ordered remanded with directions to hold for naught the vacation of the first judgment and the entry of the second judgment, and to hold in full force and effect (no writ of error having been refiled within apt time) the first judgment, and to carry out the mandate of the remittitur heretofore issued by this court.

On Petition for Rehearing.

Our disposition of the writ of error herein did not determine the validity of the original judgment. We direct attention to pertinent language in Geisler v. People, 135 Colo. 121, 308 P. (2d) 1000, relating to the effect of void judgments.

Petition for rehearing is hereby denied.