31 Colo. 363 | Colo. | 1903
delivered the opinion of the court.
A final appealable judgment for the recovery of real property was entered against the appellants in the district court. They made an application in the same cause for an order to set it aside, which was denied, and from the order denying this motion they are prosecuting this appeal.
1. In volume 1 .of the second edition of his work on Judgments, at section 34, Mr. Black says, where an application to set aside a judgment comes in the form of a motion made in the same cause and the court grants an order vacating such judgment already entered, that the vacating order is not a final judgment, for it merely suspends the finality of the
Were there any doubt about this proposition, sec. 398, Mills’ Code, settles it for us. That section provides that judicial proceedings, subsequent to final, judgment, may be reviewed only in connection with a review of the latter.—Schmidt v. Dreyer, 21 Colo. 100.
2. Yet, if this was an appealable order, the judgment of the district court must be affirmed because the judgment sought to be set aside is not in •the record, and from the transcript lodged here it is not made to appear that the order denying the application was improper.
The appeal is dismissed.
Appeal dismissed.