Opinion
No. C-1026
Decided September 7, 1976.
Petitioner sought writ of certiorari to review opinion of Court of Appeals, 38 Colo. App. 69, 552 P.2d 313.
Petition Stricken
1. CERTIORARI — Failure to File — Petition for Rehearing — Petition for Writ — Stricken. Where court of appeals granted petitioners' petition for rehearing and new opinion issued, failure of petitioners to file petition for rehearing in the court of appeals within 14 days after new opinion was announced warranted striking of their petition for writ of certiorari.
On Petition for Writ of Certiorari To The Colorado Court of Appeals
Strain Kolomitz, for petitioners.
The petitioners seek a writ of certiorari to review the opinion of the Colorado Court of Appeals in Ranchers and Farmers Livestock Auction Company v. Honey, 38 Colo. App. 69, 552 P.2d 313. We strike the petition.
[1] The court of appeals originally issued an opinion in this matter on May 6, 1976. On May 19, 1976 the petitioners here filed a petition for rehearing in the court of appeals. On June 24, 1976 the court of appeals entered the following order:
"Upon consideration of the Petition for Rehearing filed by the Defendants-Appellees herein, Petition for Rehearing is GRANTED; prior opinion, announced May 6, 1976, is withdrawn and a new opinion is issued this date."
Contemporaneously with this order the opinion above cited was announced. The petitioners here filed no petition for rehearing with respect to the new opinion. Both C.A.R. 52(b) and section 13-4-108, C.R.S. 1973 in effect provide that there can be no application for a writ of certiorari in the absence of a filing of a petition for rehearing in the court of appeals and of denial of that petition by that court. Under C.A.R. 40(a) the petition for rehearing must be filed within 14 days after the opinion has been announced, unless the time is shortened or enlarged by order. There has been no order enlarging the time.
Acting sua sponte the petition for writ of certiorari is stricken by reason of failure to file a petition for rehearing in the court of appeals as to the cited opinion.