Opinion
No. 12,194.
Decided November 12, 1928. Rehearing denied November 26, 1928.
On motion to dismiss writ of error.
Motion Granted.
1. APPEAL AND ERROR — New Trial — Dismissal. Where issues of fact are involved and determined by the trial court, the case cannot be reviewed by the Supreme Court in the absence of a motion for a new trial or an order dispensing therewith.
Error to the District Court of the City and County of Denver, Hon. Charles C. Sackmann, Judge.
Messrs. ENOS, HEALY CHRISHOLM, Mr. HAROLD W. PERRY, for plaintiff in error.
Mr. CHARLES E. FRIEND, for defendants in error.
THE question before us is upon a motion to dismiss the writ of error under rule 8. This rule provides that: "The party claiming error in the trial of any case must, unless otherwise ordered by the trial court, move that court for a new trial, and, without such order, only questions presented in such motion will be considered on review."
The judgment order complained of was for temporary alimony, attorneys' fees, and court costs. The court below heard the testimony of the plaintiff, and of the defendant, as to the necessities of the plaintiff, and the ability of the husband to pay. It thus appears that the questions presented to the trial court were issues of fact. The issues of fact heard and determined by the trial court cannot be reviewed in this court, in the absence of a motion for a new trial, or an order dispensing therewith, in the record.
Under rule 8 the record is insufficient to authorize a review. Lapham v. Phillips, 81 Colo. 449, 255 Pac. 1100.
The motion to dismiss the writ of error must be granted, and it is so ordered.