Kronkow, Inc. v. Wood

Full title: Kronkow, Inc., a Colorado corporation v. Gary Wood, individually and d/b/a…

Court: Colorado Court of Appeals. Division II

Date published: Jul 10, 1980

615 P.2d 71 (Colo. App. 1980)

615 P.2d 71

Opinion

No. 78-1099

Decided July 10, 1980.

Defendant appealed a judgment for plaintiff and denying defendant's counterclaim.

Appeal Dismissed

1. APPEAL AND ERROR — Miscounting of Days — By Counsel — Not Excusable Neglect — Notice of Appeal — Not Timely Filed — No Appellate Jurisdiction. Defendant's counsel's miscounting days within which to file notice of appeal did not constitute excusable neglect which would permit a late filing of the notice, and notice of appeal having not been timely filed, the appellate court was without jurisdiction to consider the matter.

Appeal from the District Court of Morgan County, Honorable Francis L. Shallenberger, Judge.

E. Ord Wells, Jack A. Murphy, for plaintiff-appellee.

Stan M. Connally, for defendant-appellant.

Opinion by JUDGE PIERCE.

Defendant appeals a judgment for plaintiff and denying defendant's counterclaim. Plaintiff argues that this court is without jurisdiction to hear the appeal because defendant did not file a timely notice of appeal. We agree, however, for reasons different from those argued by plaintiff, and therefore dismiss this appeal.

The trial court entered an order on October 5, 1978, denying defendant's motion for new trial. On November 8, defendant filed a motion for an enlargement of the time for filing a notice of appeal pursuant to C.A.R. 4(a). Attached to this motion was the notice of appeal and an affidavit by defendant's counsel stating that defendant's notice of appeal had not been filed within the 30-day period established by C.A.R. 4(a) because defendant's counsel had erroneously computed the period of time within which to file. The trial court granted defendant's motion, finding that the delay in filing the notice of appeal was occasioned by the "excusable neglect" of defendant's counsel.

[1] This court held in Bosworth Data Services, Inc. v. Gloss, 41 Colo. App. 530, 587 P.2d 1201 (1978), that "miscounting the days within which to file a notice of appeal does not constitute excusable neglect under C.A.R. 4(a) . . . ." In view of that holding, the trial court's granting of defendant's motion for enlargement of time constituted an abuse of discretion.

The notice of appeal not having been timely filed, this court is without jurisdiction to consider this matter. Bosworth Data Services, Inc. v. Gloss, supra.

Appeal dismissed.

JUDGE SMITH and JUDGE STERNBERG concur.