Sutley v. Davis

Mr. Justice Knauss delivered the opinion of the Court. W. B. Sutley, who alleged he was the owner of certain farm land included in the San Luis Valley Irrigation District, and entitled to divert irrigation water for use on his land, filed his petition to condemn a right-of-way for a ditch across the lands of Glenn C. Davis [76] and Roy S. Lofton. By answer, these respondents denied the necessity of the taking of their land. Pursuant to statute, commissioners were appointed by the court and made report that there was no necessity for the taking of respondents’ land. Counsel for petitioner then moved the court to set aside the findings of the commissioners. On September 12, 1953 the court denied this motion and declared that a rehearing thereof was unnecessary. Within the time limited by the court, counsel for petitioner tendered and had the record and reporter’s transcript of the evidence before the commissioners approved by the trial judge. Nothing further appears in the record before us. No judgment of dismissal of the petition or final determination of the action is shown by the record. The action of the trial court in refusing to set aside the report of the commissioners, while no doubt considered as such, is not a final judgment from which a writ of error will lie. We have repeatedly held, that unless a final judgment, pursuant to Rule 112 (a) R.C.P. Colo., appears in the record, the writ of error will be dismissed. No final judgment or determination of this action being shown, the writ of error is dismissed. Mr. Justice Holland dissents. Mr. Chief Justice Alter concurs in the result.