C.A.R. 8

History

Source: Entire rule amended and effective January 7, 2015. Cross references: For stay of proceedings to enforce a judgment, see C.R.C.P. 62. ANNOTATION I. General Consideration. II. Application for Stay or Injunction. III. Bond; Sureties; When Bond Not Re- quired. I. GENERAL CONSIDERATION. Law reviews. For article, ‘‘Supreme Court Proceedings: Rules 111-119’’, see 23 Rocky Mtn. L. Rev. 618 (1951). For article, ‘‘Appel- late Procedure and the New Supreme Court Rules’’, see 30 Dicta 1 (1953). For article, ‘‘Some Observations on Colorado Appellate Practice’’, see 34 Dicta 363 (1957). For article, ‘‘Staying Enforcement of a Judgment Pending Appeal’’, see 48 Colo. Law. 30 (May 2019). This rule must be observed, and the su- preme court will grant the application for supersedeas only after compliance with the rule. Alsup v. Alsup, 76 Colo. 260, 230 P. 796 (1924). Trial court’s jurisdiction usually lost upon perfection of appeal. Under normal appellate procedures a trial court loses its jurisdiction over a case as soon as an appeal is perfected in an appellate court. Hylton v. City of Colo. Springs, 32 Colo. App. 9, 505 P.2d 26 (1973). But jurisdiction reinvested upon appellate court’s decision. When an appellate court an- nounces its decision to affirm, reverse, remand, or modify then a trial court is automatically reinvested with jurisdiction. Hylton v. City of Colo. Springs, 32 Colo. App. 9, 505 P.2d 26 (1973). No power to stay writ of habeas corpus. A court has no power to stay proceedings upon an order of discharge of a prisoner upon a writ of habeas corpus. Geer v. Alaniz, 137 Colo. 432, 326 P.2d 71 (1958). Court does not pass upon plaintiff’s claim that the stay order was improperly entered when he did not formally protest that order by filing either a notice of appeal under C.A.R. 4 or a motion under this rule. DiMarco v. Dept. of Rev., MVD, 857 P.2d 1349 (Colo. App. 1993). Although a habeas corpus proceeding is a civil action, this rule and Rule 62, C.R.C.P., do not apply, and stays of execution are not appro- priate in such a proceeding. Geer v. Alaniz, 137 Colo. 432, 326 P.2d 71 (1958). Applied in Bernstein v. Goldberg, 81 Colo. 39, 253 P. 477 (1927); Shotking v. Atchison, T. & S.F.R.R., 124 Colo. 141, 235 P.2d 990 (1951); Williams v. Guaranty Nat’l Ins. Co., 152 Colo. 457, 382 P.2d 802 (1963). II. APPLICATION FOR STAY OR INJUNCTION. ‘‘Supersedeas’’ defined. Supersedeas is merely an auxiliary process designed to super- sede the enforcement of the judgment of the court below brought up on appeal for review. Monks v. Hemphill, 119 Colo. 378, 203 P.2d 503 (1949). Appeal may be had without supersedeas. The appeal and supersedeas are two separate things, and the appeal can be sustained without a supersedeas. Monks v. Hemphill, 119 Colo. 378, 203 P.2d 503 (1949). But stay of execution must be sought by supersedeas. Where a stay of execution is de- sired by appellant, such relief must be sought by application for supersedeas. Alden Sign Co. v. Roblee, 119 Colo. 409, 203 P.2d 915 (1949). Record must be complete before supersedeas will be granted. While the record must be complete before an application for supersedeas will be granted, in a case involving many parties and many causes of action and counterclaims, if it is complete so far as con- cerns those controversies in which error is as- signed, it will be sufficient. Murray v. Stuart, 77 Colo. 167, 234 P. 1113 (1925). Supersedeas not granted until application made therefor. Whether or not a supersedeas should be granted will not be considered until an application is made for the writ. Ward v. Ward, 89 Colo. 396, 3 P.2d 415 (1931). Trial court may issue a stay either before or after a notice of appeal is filed. Odd Fel- lows Bldg. & Inv. Co. v. City of Englewood, 667 P.2d 1358 (Colo. 1983). To determine whether to stay an order denying or granting an injunction, a court must consider four factors: (1) Whether the stay applicant has made a strong showing that he or she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties inter- ested in the proceeding; and (4) where the pub- lic interest lies. Romero v. City of Fountain, 307 P.3d 120 (Colo. App. 2011). The probability of success that must be dem- onstrated is inversely proportional to the amount of irreparable injury a plaintiff will suf- fer absent the stay. More of one excuses less of the other. Romero v. City of Fountain, 307 P.3d 120 (Colo. App. 2011). Supersedeas not granted to stay execution for costs. Where a supersedeas would serve only to stay an execution for costs application for the writ will be denied. Hunter v. Stapleton, 77 Colo. 456, 236 P. 1013 (1925). Stay of proceedings ordered. Zaharia v. County Court ex rel. County of Jefferson, 673 P.2d 378 (Colo. App. 1983). III. BOND; SURETIES; WHEN BOND NOT REQUIRED. Law reviews. For article, ‘‘Bonds in Colo- rado Courts: A Primer for Practitioners’’, see 34 Colo. Law. 59 (March 2005). Trial court erred in entering an order stay- ing all proceedings relative to enforcement of family support order without requiring ap- pellant to file supersedeas bond. Muck v. Arapahoe County Dist. Court, 814 P.2d 869 (Colo. 1991). Charitable institution may execute supersedeas bond as principal. Buchhalter v. Solomon, 78 Colo. 227, 241 P. 718 (1925), appeal dismissed, 273 U.S. 640, 47 S. Ct. 106, 71 L. Ed. 818 (1926). Bond in form of cost bond not within rule. A bond in the form prescribed by § 13-16-101 for a cost bond is not a supersedeas bond and is not within this rule. Fifer v. Fifer, 120 Colo. 10, 206 P.2d 336 (1949). Sureties subject themselves to judgment. In entering into the bond the sureties agreed, in effect, to abide by the law permitting the entry of judgment. Buchhalter v. Solomon, 78 Colo. 227, 241 P. 718 (1925), appeal dismissed, 273 U.S. 640, 47 S. Ct. 106, 71 L. Ed. 818 (1926). Burden to show cause why the execution should not issue. In a proceeding by scire facias to obtain execution upon a judgment on a supersedeas bond, the burden is upon the surety to show cause why the execution should not issue. Bosworth v. Garwood, 79 Colo. 391, 246 P. 555 (1926). Corporation held not under patronage or control of state. Buchhalter v. Solomon, 78 Colo. 227, 241 P. 718 (1925), appeal dismissed, 273 U.S. 640, 47 S. Ct. 106, 71 L. Ed. 818 (1926).