Baer Bros. Land & Cattle Co. v. Wilson

• Decision Date: 06 June 1904
• Citation: 77 P. 245,32 Colo. 500
• Parties: BAER BROS. LAND & CATTLE CO. v. WILSON et al.
• Court: Colorado Supreme Court

77 P. 245

32 Colo. 500

BAER BROS. LAND & CATTLE CO. v. WILSON et al.

Supreme Court of Colorado

June 6, 1904

Appeal from District Court, Rio Blanco County; John T. Shumate Judge.

Action between the Baer Bros. Land & Cattle Company and H. T. Wilson and others. From a judgment in favor of the latter, the former appeals. On motion to amend the transcript and to extend the time for filing proof of service and publication of order allowing appeal. First motion granted, second denied.

C. W Darrow, for appellant.

CAMPBELL J.

The motion has a two-fold object: First, to amend the transcript second, to extend the time for filing proof of service and publication of order allowing the appeal. As the second ground presents an important question of practice our conclusion should be embodied in an opinion as a precedent in similar cases.

1. Leave under the first ground of motion is almost as a matter of course. The proper practice, however, is not for this court to order omitted parts of the record to be inserted in a transcript. Permission may be given to withdraw the transcript for correction by the trial court, or an order made allowing a supplemental transcript to be filed to perfect the record. Appellant may file a supplemental transcript containing the portions of the record which it alleges have by inadvertence been omitted, subject, of course, to the right of appellees to make their objections.

2. The judgment sought to be reviewed seems to have been entered under the general irrigation statutes enacted for the purpose of settling the priorities of right to the use of water for irrigation. These statutes furnish a special procedure, which embraces specific provisions for perfecting an appeal. Section 2432, Mills' Ann. St., requires that proof of the service and publication of the order allowing the appeal shall be filed with the clerk of the Supreme Court within 60 days after the order is made, and, if not so filed, the Supreme Court shall, on motion of the appellee at any time after such default in filing of proof and before such proof shall be filed, dismiss the appeal.

We cannot grant the extension. The provision as to time is mandatory. Needle Rock D. Co. v. Crawford-Clipper D. Co. (Colo. Sup.) 75 P. 424. While the mere failure of appellant to file the proof within 60 days after the order of allowance is made does not ipso facto work a dismissal of the appeal yet if appellees should...