Opinion
Feb. 26, 1974
Editorial Note:
This case has been marked 'not for publication' by the court.
Charles J. Haase, William L. Carew, Colorado Springs, for the plaintiffs-appellants.
Donald E. LaMora, Colorado Springs, for the defendants-appellees.
PIERCE, Judge.
Plaintiffs' amended complaint contained five claims for relief. Defendants answered each of the claims and in addition filed several counterclaims. On the day set for trial, defendants moved to dismiss all of plaintiffs' claims, but elected to pursue one of their counterclaims. All of plaintiffs' claims for relief were dismissed for reasons not pertinent here and consideration of the counterclaim was put over until another day. Plaintiffs appeal now from the dismissal of all of their claims. We dismiss the appeal as premature.
At the time that the court dismissed plaintiffs' claims for relief, plaintiffs indicated a desire to appeal, and the court, in addition to dismissing plaintiffs' claims, stated:
'(T)his matter falls within the provisions of Rule 69(h), the Colorado Rules of Civil Procedure, as amended, not involving any controverted issues of fact and . . . a motion for a new trial shall be and is hereby dispensed with.'
This ruling is not sufficient to permit review of the court's dismissal of plaintiffs' claims while defendant continues to assert a counterclaim.
C.R.C.P. 54(b) provides for the entry of the final judgment 'as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.' The rule further provides that in the absence of such determination and direction, any order which adjudicates fewer than all of the claims 'shall not terminate the action as to any of the claims. . . .' Since these prerequisites were not met in this case, the disposition of the plaintiffs' claim for relief did not dispose of all appealable matters, and the order from which plaintiffs are attempting to appeal is not a final judgment. Blackburn v. Skinner, 156 Colo. 41, 396 P.2d 968; Fidelity & Deposit Co. v. May, 142 Colo. 195, 350 P.2d 343; Broadway Roofing & Supply, Inc. v. District Court, 140 Colo. 154, 342 P.2d 1022.
We reach this result even though the appealability of the order was not raised by the parties. This court cannot fail to take cognizance of the record presented and, where it appears from the record that there is no final judgment, the matter is jurisdictional and we must dismiss the appeal. C.A.R. 1(a), Schtul v. Christ, 132 Colo. 293, 287 P.2d 661.
Appeal dismissed.
ENOCH and RULAND, JJ., concur.