1. APPEAL AND ERROR — Memorandum Brief — Motion for New Trial — Rule Mandatory — Motion Denied — Absence of Brief — Nothing for Review. The rule of procedure specifying that a memorandum brief shall be filed with a motion for new trial is a mandatory rule, and where trial court denied a motion for new trial, not on the merits, but for non-compliance with that rule, it is as though no motion for new trial was ever filed; thus, there being no motion for new trial, there is nothing to be considered by the Court of Appeals on review.
Opinion by JUDGE VAN CISE.
Defendants, West-Fir Studs, Inc., and Craig Lumber Company, appeal from a $6,124.70 judgment in favor of plaintiff, Anlauf Lumber Company, for unpaid rent, less a $1,249.91 set off judgment for defendants, and from a denial of defendants' other counterclaims. On review of the record, we find that defendants timely filed their motion for new trial, but failed to file with that motion "a short memorandum brief including authorities, if any, upon which the applicant relies in support of the motion" as required by C.R.C.P. 59(a). On the motion the trial court ruled:
"There was no memorandum filed with defendants' motion for new trial as required by the Rules of Civil Procedure and it is ordered that said motion is denied."
[1] The rule, C.R.C.P. 59, specifies that the memorandum brief "shall be field with the motion." There is a presumption that the word "shall" when used in a statute or rule is mandatory. See Swift v. Smith, 119 Colo. 126, 201 P.2d 609; Sperry Rand Corp. v. Board of County Commissioners, 31 Colo. App. 444, 503 P.2d 356. Where, as here, the court denied the motion, not on the merits, but for non-compliance with the Rule, it is as though no motion for new trial was ever filed. See Martin v. Opdyke Agency, Inc., 156 Colo. 316, 398 P.2d 971. There being no motion for new trial, there is nothing to be considered by this court on review. C.R.C.P. 59(f).
Although this case is not properly before this court, we have, in any event, read the full record before us, considered the briefs and oral arguments of counsel and have concluded that, if the appeal were determined on the merits, the judgment of the trial court would be affirmed.
The appeal is dismissed.
JUDGE ENOCH and JUDGE BERMAN concur.