Bowling v. Chambers

• Decision Date: 13 June 1904
• Citation: 77 P. 16,20 Colo.App. 113
• Parties: BOWLING v. CHAMBERS et al.
• Court: Colorado Court of Appeals

77 P. 16

20 Colo.App. 113

BOWLING v. CHAMBERS et al.

Court of Appeals of Colorado

June 13, 1904

Error to Archuleta County Court.

Action by S.E. Bowling against C.W. Chambers and another. There was judgment for defendants, and plaintiff brings error. Reversed.

Chas. A. Johnson, for plaintiff in error.

John F Spickard (Calvin E. Reed, of counsel), for defendants in error.

MAXWELL J.

September 15, 1900, there was lodged in the office of the clerk of this court what purported to be an authenticated copy of the record in this case. Defendants in error, June 20, 1901 filed a motion to dismiss the appeal upon the ground that the record filed had been authenticated by the judge of the county court of Archuleta county, and not by the clerk, there being at the time of such authentication a duly appointed clerk. Plaintiff in error conceded this point to be well taken, and asked leave to withdraw the record for the purpose of having the same duly authenticated. This motion to dismiss was denied, and leave to withdraw the record granted. The record was withdrawn, and refiled November 7, 1901 authenticated by the clerk of the court below. November 29, 1901, defendants in error renewed their motion to dismiss, which motion was denied, with leave to renew and argue the same on final hearing.

The authentication of the transcript of the record is a clerical duty. In McNevins v. McNevins, 28 Colo. 247, 64 P. 200, the Supreme Court has said: "While the court may dispense with the services of the clerk and revoke the appointment, and then resume the power to perform clerical duties, yet so long as the appointment of the clerk, once made, is not revoked, the latter official alone, or by his deputy, has power to discharge the clerical duties of the office." The record filed herein, having been authenticated by the judge, was a nullity, and section 389 of the Civil Code, which requires the appellant to file in the office of the clerk of this court an authenticated copy of the record of the judgment appealed from by or before the third day of the next term of the court, not having been complied with, the appeal should have been dismissed. Perkins v. Boyd (Colo.App.) 68 P. 1062, and Moynahan v. Perkins, Id., are in conflict with Taylor v. Colorado Iron Works, 29 Colo. 372, 68 P. 218, and the rule herein announced, and are hereby overruled.

Plaintiff in error invokes the aid of section 388a, Mills' Ann.Code, which provides: "Whenever the Supreme Court or the Court of Appeals shall dismiss an appeal for lack of jurisdiction to entertain the same, and it appearing that the court would have jurisdiction if the action had come up on writ of error, the court shall order the clerk, without additional fees, to enter the action as pending on writ of error, and thereupon all the proceedings shall be such as if the action had originally been brought to the court on writ of error." Defendants in error contend that, more than three years having elapsed since the rendition of the judgment herein, the court is as powerless to order the case redocketed on error as the plaintiff in error would be to now sue out a writ of error. We do not construe the above-quoted section of the Code to permit or command a redocketing of the case on error in a sense which would involve the issuance of a scire facias and proceedings incident to the commencement of a new suit by writ of error. The command is: "The court shall order the clerk *** to enter the action as pending on writ of error, and thereupon all the proceedings shall be such as if the action had originally been brought to the court on writ of error." The language indicates that it was the intention of the Legislature to provide a method to reach just such cases as this record presents; that the case should be considered as pending on error, and not on appeal, from the day when the record was filed; that it should not lose its place or number on the docket, and should be considered and determined, when reached, as if it had originally been brought here on writ of error.

The jurisdiction of this court to entertain this matter if it had come up on writ of error must be conceded, and we think that the case falls within the mandate of the above-quoted section of the Code. Such seems to have been the view taken by the Supreme Court in D. & R.G.R.R. Co. v. Peterson, 30 Colo. 77, 69 P. 578, where it is said: "The case was docketed as an appeal from the county court of El Paso county. This court has jurisdiction to review the judgment by writ of error, but not on appeal. In such circumstances out statute provides that the appeal shall be dismissed, and the case redocketed on error. Orders so providing are therefore entered. Mills' Ann.Code, § 388a." The motion to dismiss will be allowed, the clerk ordered to enter the action as pending on writ of error. Orders so providing are therefore entered.

This suit was commenced before a justice of the peace by plaintiff in error against C.W. Chambers and R.J. Chambers upon a promissory note. C.W. was not served with summons, did not appear, and suit was dismissed as to him by the justice of the peace. A jury trial resulted in a verdict and judgment in favor of R.J. On appeal to the county court, before the trial, the suit was again dismissed as to C.W., and a jury trial again resulted in a verdict and judgment in favor of R.J. Therefrom this writ of error is prosecuted. Twenty-five errors are assigned. Only those, however, relied upon by counsel in his brief will be considered, which challenge the action of the court in dismissing the suit as to C.W., the instructions to the jury given at the request of the defendant, and the sufficiency of the evidence to support the verdict.

C.W. entered a special appearance in the county court, moved a dismissal as to himself for the reason that summons had not been served upon him, which motion was supported by his affidavit. The motion to dismiss, the affidavit in support thereof, and exception to the ruling of the court thereon, are not made a part of the record by the bill of exceptions, and therefore the assignment of error based thereon cannot be considered. Rudolph v. Smith (Colo.App.) 72 P. 817.

There being no pleadings, we gain a knowledge of the facts from the evidence, from which it appears that the note sued on is for $100, dated January 4, 1893, payable six months after date to the order of S.E. Bowling, plaintiff in error, who is the wife of H.R. Bowling, who acted as plaintiff in error's agent throughout the transactions herein involved. It is conceded that R.J. signed the note as surety for C.W. R.J. defended upon the grounds: First, that after maturity of the note, without his knowledge or consent, the owner of the note...