Chapman v. Miller

Annotate this Case

476 P.2d 763 (1970)

Kenneth W. CHAPMAN, Plaintiff-Appellee, v. Robert T. MILLER, Defendant-Appellant.

No. 70-492.

Colorado Court of Appeals, Div. II.

November 10, 1970.

*764 John R. Wall, Pueblo, for plaintiff-appellee.

Robert L. McMichael, Pueblo, for defendant-appellant.

Before DWYER, ENOCH and PIERCE, JJ.

Selected for Official Publication.

PER CURIAM.

The plaintiff-appellee has moved to dismiss this appeal on the ground that defendant-appellant failed to file a timely notice of appeal as required by C.A.R. 4(a). Appellant has moved that his time for filing the notice of appeal be enlarged and that his appeal be allowed.

The judgment was entered by the trial court on March 19, 1970. Appellant's timely motion for new trial was denied May 5, 1970. Notice of appeal was filed in the trial court on July 20, 1970.

The judgment was one from which an appeal is permitted by law from the trial court to the appellate court. C.A.R. 3(a) provides that such an appeal shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by C.A.R. 4(a).

The pertinent provision of C.A.R. 4(a) requires that the notice of appeal be filed within 30 days from the entry of the order denying the motion for new trial.

Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal for a period not to exceed 30 days.

Appellant's notice of appeal was not filed within 30 days of the date of the entry of the order denying the motion for a new trial. No extension of time for filing the notice of appeal was granted by the trial court and no request for such an extension was made by appellant in the trial court within the time limitation prescribed by C.A.R. 4(a).

The timely filing of a notice of appeal is mandatory and jurisdictional. See United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 4 L. Ed. 2d 259, interpreting what have become Rules 3 and 4 of the Federal Rules of Appellate Procedure upon which the Colorado rules are patterned.

C.A.R. 26(b) provides that the appellate court may not enlarge the time for filing a notice of appeal beyond that prescribed in C.A.R. 4(a).

Accordingly, appellant's motion for enlargement of time for filing the notice of appeal is denied; and the appellee's motion to dismiss the appeal is granted.

Appeal dismissed.