Marzec v. FREMONT COUNTY, COLORADO SCHOOL DIST. NO. 2

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315 P.2d 987 (1957)

Eugene MARZEC, Plaintiff in Error, v. FREMONT COUNTY, COLORADO SCHOOL DISTRICT NO. 2, and Dr. N. B. McGrath, Eddie Westwater, John Camerlo, and Robert Crusen, as the Board of Education and, or Employing Board of School District No. 2, Fremont County, Colorado, Defendants in Error.

No. 18046.

Supreme Court of Colorado, En Banc.

September 30, 1957.

*988 Jenkins, Stewart & Tursi, Jack Jenkins, Pueblo, for plaintiff in error.

Jack Merwin, Florence, for defendant in error.

HALL, Justice.

The record before us contains (1) a complaint, (2) motion to dismiss for the reason that the complaint does not state a claim, (3) motion to dismiss for the reason that the matters involved in this case had been finally adjudicated in case No. 7417 in the same court and between the same parties, this motion being supported by the record in case No. 7417 consisting of complaint, motion to dismiss for failure to state a claim and order sustaining motion to dismiss, (4) order sustaining motion to dismiss.

The record does not indicate any proceedings in the trial court subsequent to the order sustaining the motion to dismiss. There is nothing in the record to indicate that the plaintiff was given an opportunity to amend his complaint as he had a right to do under Rule 15, R.C.P. Colo.; nothing to indicate that the plaintiff elected to stand on his complaint; nothing to indicate that a judgment was ever entered or a motion for a new trial filed or dispensed with.

Apparently case No. 7417 remains in the same unfinished state that we find in the case before us.

There being no judgment before us to review, affirm, reverse or modify, the writ of error must be dismissed. See Nutter v. Wright, 132 Colo. 304, 287 P.2d 655, and the numerous decisions of this court therein referred to.

The writ of error is dismissed without prejudice to further appropriate proceedings in the trial court and this court.