Summary
In Levine v. Empire Sav. Loan Ass'n, 189 Colo. 64, 536 P.2d 1134 (1975), without engaging in discussion or analysis of the issue, we affirmed a decision of the court of appeals.
Summary of this case from Musick v. WoznickiOpinion
No. C-570
Decided June 16, 1975. Rehearing denied July 14, 1975.
Plaintiffs filed a class action challenging the assumption penalties on certain deeds of trust. Trial court entered order striking class action allegations of complaint and plaintiffs appealed. The Court of Appeals, 34 Colo. App. 235, 527 P.2d 910, dismissed appeal and certiorari was granted.
Affirmed
1. APPEAL AND ERROR — Class Action — Dismissal — Nunc Pro Tunc Order — Rule — Notice of Appeal — Dismissal — Lack of Jurisdiction. Where trial court struck class action allegations of plaintiffs' complaint, and three months later court entered a C.R.C.P. 54(b) order nunc pro tunc as of date plaintiffs' motion for rehearing was denied, and where plaintiffs then filed a notice of appeal on judgment dismissing class action, held, under the circumstances, trial court had no jurisdiction to enter a Rule 54(b) order after plaintiffs' notice of appeal had been filed; moreover, there being no final judgment order under provisions of said Rule, the notice of appeal was void.
Certiorari to the Colorado Court of Appeals
Hellerstein and Levine, Harry L. Hellerstein; Criswell and Patterson, John A. Criswell, for petitioners.
Calkins, Kramer, Grimshaw Harring, for respondent Empire Savings and Loan Association.
Law, Nagel and Clark, for respondent James B. Nutter and Company.
Fairfield and Woods, for respondent Midland Federal Savings and Loan Association.
A. M. Lutz, Harland G. Balaban, for respondent Mile High Savings and Loan Association.
Mosley, Wells Dean, for respondent Western Federal Savings and Loan Association.
[1] Levine for himself and others of a class instituted suit challenging the assumption penalties on certain deeds of trust.
The trial court struck the class action allegations of petitioners' complaint. After their motion for rehearing was denied, petitioners filed a notice of appeal on the judgment dismissing the class action. Three months later, the trial court entered a C.R.C.P. 54(b) order nunc pro tunc as of the date petitioners' motion for rehearing was denied.
The Court of Appeals dismissed petitioners' appeal on two grounds: (1) that the trial court had no jurisdiction to enter the 54(b) order after petitioners' notice of appeal had been filed; and (2) that there being no final judgment order under the provisions of Rule 54(b) the notice of appeal was void.
The decision is affirmed.
The cause is remanded to the Court of Appeals with directions to remand to the trial court for further proceedings including opportunity to apply for a new 54(b) order. If the court enters the 54(b) order, the appellate process would apply as in other cases.
MR. CHIEF JUSTICE PRINGLE does not participate.