Alvord v. McGaughey
| Decision Date | 01 April 1880 |
| Citation | 5 Colo. 244 |
| Parties | ALVORD ET AL. v. McGAUGHEY. |
| Court | Colorado Supreme Court |
Error to District Court of Ouray County.
THIS was a motion to dismiss the writ of error.
Messrs MILES & ANDREWS, for the defendant in error.
Messrs HUBBARD & HARMAN, contra.
This cause was brought here by writ of error to the District Court of Ouray County. The defendant in error moves to dismiss the writ upon several grounds, one of which is-'there is nothing shown in the record to which the writ will lie.'
An inspection of the record discloses the fact that no final judgment has been entered in the cause, and that the portion of the record supposed to be a judgment, is simply the findings of the court, the cause having been tried by the court without a jury. These findings are as follows 'After hearing the evidence and arguments of the counsel, the court doth find that the said defendants are indebted to the said plaintiff in the sum of two hundred and two dollars, together with his costs in this behalf paid, laid out and expended, taxed at _____ dollars; and then, upon motion of the said defendants, it is ordered that the plaintiff be taxed with all costs accruing from the date of the filing of the motion in the county court to set aside the appeal bond up to the time when the county court granted the petition for change of venue, and all the remainder of the costs in this cause shall be taxed to the defendants.'
A cross-motion had been interposed for leave to file a supplemental transcript, and the document proposed to be filed is submitted for our inspection. We find it to be simply a bill of exceptions, and certified to be such by the clerk of the district court. It contains an allegation that a judgment was rendered, but no judgment is set out, although the same findings of the court are copied therein which appear in the original transcript. This statement that a judgment was rendered does not follow the findings of the court, but occurs immediately after the testimony, and doubtless refers to the findings, characterizing them as a judgment.
Inasmuch as the statement does not appear in the transcript of the record, but only in the bill of exceptions, the plain and necessary inference is that it is a conclusion of the counsel who prepared the bill of exceptions, and that there is no such statement of record in the court below. But if a part of the record, it would not cure the defect, as this statement is not a judgment. In the case of ...
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Rice v. Van Why
...been determined, and the entry must appear to be intended as the entry of a judgment. Higgins v. Brown et al., 6 Colo. 148; Alvord et al. v. McGaughey, 5 Colo. 244; Stevens v. Muldoon Printing Co., 7 Colo. 86 . 'The order entered in this case neither in form, nor in substance, approaches th......
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Koch v. Meacham
... ... of merely findings on the part of the court. [Freeman v ... McCrite, 165 Mo.App. 1, 147 S.W. 1102; Alvord v ... McGaughey, 5 Colo. 244; Emig v. Medley, 69 ... Ill.App. 199; Canadian etc. Co. v. Clarita etc. Co., ... 140 Cal. 672, 74 P. 301; State ex ... ...
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Thomas v. McElroy
...have found actions such as that first taken in this cause not to be such final determinations as to constitute judgments. In Alvord v. McGaughey, 5 Colo. 244 (1880), the court entered a finding that the defendants were indebted to the plaintiffs in the sum of $202.00. The court said that wh......
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Koch, Exr., v. Meacham, Exrx., 19334.
...the will is not a judgment but consists of merely findings on the part of the court. [Freeman v. McCrite, 165 Mo. App. 1; Alvord v. McGaughey, 5 Colo. 244; Emig v. Medley, 69 Ill. App. 199; Canadian etc. Co. v. Clarita etc. Co., 140 Calif. 672; State ex rel. v. Brown, 44 Ind. 329; Boden v. ......