Johnson v. George , 119 Colo. 153 ( 1948 )

PLAINTIFFS in error, proceeding timely in the matter of an adverse final judgment below, filed the record, obtained the issuance of a writ of error, filed an abstract of record, and their opening brief. Defendant in error filed a motion to dismiss the writ of error, for that, sufficiently stated, the record does not reveal material error.

[1] Since, as seems clear, regularity attended the issuance of the writ of error, and that we have jurisdiction, the question posed is, May we entertain the motion for the purpose of examining the record and determining as on final submission? We think not. "On motion to dismiss, the court will ordinarily not consider the merits of the appeal or questions involving them, or controverted questions; nor will it consider before a hearing on the merits a motion requiring examination of the entire record." 4 C. J. S., p. 1994, § 1377, c. On such a motion, "The court will look to the regularity of the writ and the fact of jurisdiction. * * * The merits of the case will not be considered." 3 Am. Jur., p. 325, § 755. See, also, Johnson v. Sun Realty Co., 215 Cal. 382,10 P.2d 460; In re Sayles' Estate, 212 Cal. 437,298 P. 971. Let the motion to dismiss the writ of error be denied.

Time for filing answer brief on the merits shall commence to run on the date of the announcement of this opinion, otherwise, Rule 115(b) will control in the matter of filing briefs.

Mr. CHIEF JUSTICE BURKE and Mr. JUSTICE ALTER concur.