Brandexburg v. Reithman

• Decision Date: 18 April 1884
• Citation: 3 P. 577,7 Colo. 323
• Parties: BRANDEXBURG v. REITHMAN.
• Court: Colorado Supreme Court

3 P. 577

7 Colo. 323

BRANDEXBURG v. REITHMAN.

Supreme Court of Colorado

April 18, 1884

Error to county court of Arapahoe county.

Waldheimer & Jenkins and L. C. Rockwell for plaintiff in error.

J H. Brown, for defendant in error.

BECK C.J.

This was an action under the forcible entry and detainer statute to recover possession of leased premises. It was originally instituted before a justice of the peace; the complaint alleging the letting of the premises for one year, to the plaintiff in error, from May 1, 1880, and the holding over by the latter after the expiration of the term, and demand made for possession. The plaintiff obtained judgment before the justice, and likewise in the county court, upon appeal from the judgment of the justice. An appeal from the latter judgment to this court was prayed by the plaintiff in error and denied by the court below, which ruling is assigned as the first ground of error. We are of opinion that the ruling was correct, for the reason that no appeal lay to this court from the judgment of the county court. Section 17 of the forcible entry and detainer statute provides that 'appeals and writs of error to the supreme court from the judgments of the district court, and writs of error to the judgment of any county court in proceedings under this chapter, shall be allowed as in other cases.' Gen. St. 505. The same practice existed in this class of actions under the territorial organization. An appeal from the judgment of a district court lay to the supreme court, and a writ of error only lay to the judgment of a probate (now county) court. Rev. St. 1868, p. 336, § 17. It is true that an appeal did not them lie from the judgment of a probate court in any case; but this fact does not affect the question whether an appeal from the judgment of a county court now lies under the same statute. By the express language of the statute only a writ of error lies in such case. Unless, then, the right of appeal is given by the Civil Code it does not exist. The Code provision is:

'Appeals to the supreme court from the district and county courts shall be allowed in all cases where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold.' Civil Code, p. 124, § 415.

This is the same provision (excluding the words 'and county courts') originally enacted in 1861. Laws 1861, p. 285, § 41. It was copied from the statute of Illinois, and the meaning of the phrase 'or relate to a freehold' had been judically defined previous to the enactment of 1861. The supreme court of Illinois had said, in Rose v. Choteau, 11 Ill. 167:

'To justify an appeal on the ground that the judgment relates to a freehold, the right of a freehold must have been directly the subject of the action,--not incidentally or collaterally; and the judgment must be conclusive of the right until it is reversed.'

This is equivalent to saying that the title of the freehold must be involved in the litigation.

Under the amended practice act of 1877, of the state of Illinois, instead of the words 'or relate to a franchise or freehold,' the phraseology is, 'where a franchise or freehold * * * is involved.' In the several decisions upon the effect of the amended provision, no distinction has been made, that we are aware of, between the force of the words 'relate to a freehold' and the words 'where a freehold is involved.' In the absence of an adjudication upon the point, we are of opinion that the amendment does not exclude an appeal in any case embraced in the original provision. Since the amendment, it has been held that a proceeding in forcible entry and detainer does not invalidate or call in question the title to land, and that an appeal does not lie therefrom; also that a proceeding to foreclose a mortgage, or a proceeding to establish and enforce a mechanic's lien, does not involve a freehold. McGuirk v. Burry, 93 Ill. 118; Pinneo v. Knox, 100 Ill 471; Clement v. Reitz, 103 Ill. 315. We deem the cases cited upon this point conclusive as to the force and meaning of the phrase referred to. Sedg. & Wait, Tr. Title Land, § 94.

Another point made in favor of the right of appeal is that section 267 of the Civil Code abolishes the distinction between the actions of ejectment and forcible entry and detainer; makes the latter a concurrent remedy with the Code substitute for ejectment, and makes all rules of practice, including appeals, equally applicable to the proceeding, whether it be under the Code remedy, or the forcible entry and detainer statute. This proposition is not maintainable. The Code provision cited itself defeats the proposition. ...