Stonebraker v. Konugres

Mr. Justice Luxford delivered the opinion of the court. Plaintiff in error sued defendants in error for damages allegedly caused by wrongful acts committed by them in connection with the handling of a carload shipment of goat cheese which moved from Trinidad, Colorado to New York City, New York, in February, 1942. The First National Bank of Trinidad, one of the defendants in error, filed a motion to dismiss plaintiff in error’s amended complaint for the reason that the same did not *430 state facts sufficient to constitute a cause of action against it. The trial court entered an order sustaining the motion. Plaintiff in error elected “to stand on the action of the court,” and brings error. Other than entering an order sustaining the motion to dismiss and fixing a time for tendering a bill of exceptions, no orders were made and no final judgment entered. Entry of final judgment is a prerequisite to the right to prosecute error. Rule 111 (a) (1), R.C.P. Colo.; Commercial Credit Co. v. Higbee, 88 Colo. 300, 295 Pac. 792; Martin v. Way, 86 Colo. 232, 280 Pac. 488; J. & R. A. Savageau v. Larsen, 117 Colo. 229, 185 P. (2d) 1012. The writ of error is dismissed, but without prejudice to further appropriate proceedings in the court below. Mr. Chief Justice Burke and Mr. Justice Jackson concur.