O'Brien v. People
| Decision Date | 05 April 1948 |
| Docket Number | 16021. |
| Citation | 192 P.2d 428,118 Colo. 58 |
| Parties | O'BRIEN v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to Jefferson County Court; Christian D. Stoner, Judge.
Thomas H. O'Brien was convicted of careless driving of a motor vehicle upon a public highway. To review judgment of county court sustaining order for issuance of procedendo because defendant on appeal from justice of the peace court had not paid docket fee, defendant brings error.
Judgment reversed.
Charles A. Murdock, of Denver, for plaintiff in error.
H Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.
The sole question involved in this case is the validity of the appeal of plaintiff in error from a justice of the peace court to a county court. Plaintiff in error will hereinafter be designated as defendant.
In a justice of the peace court defendant was found guilty of careless driving of a motor vehicle upon a public highway, and fined $15 plus $3 costs on September 30, 1947. He immediately arranged for an appeal to the county court and filed an appeal bond, which was approved by the justice on the same day and filed in county court together with the summons and transcript October 3, 1947. He paid no docket fee. October 6, 1947, being the first day of the October term, at three minutes after ten in the morning, the county court ordered a procedendo to issue because no docket fee had been paid to that court by defendant. October 9 defendant filed a second appeal bond in the county court, after it had been approved by the justice of the peace, together with a transcript of the proceedings in the justice court, and simultaneously paid the requisite docket fee of $7.50. The clerk gave the following qualified receipt: 'This fee received subject to Court Ruling and is placed in registry pending said ruling.'
January 12, 1948, the county court set the hearing on procedendo for January 26, 1948, and on the latter date entered the order which is brought here for review by writ of error. This order recites that on October 3, 1947, an appeal conforming to the statute was received by the clerk of the county court from the justice of the peace; that on October 6 the clerk informed the court that the docket fee as required by law had not been paid; that thereupon the court ordered the appeal dismissed and that procedendo issue; that a subsequent hearing was accorded the attorney for defendant, who questioned the propriety of the issuance of procedendo. In the meantime the justice of the peace, on October 9, returned the file of the case to the county court, with the prior appeal bond deleted and a new appeal bond substituted together with a docket fee.
The court concluded its findings with the statement: '* * * that the defendant by filing his appeal with this Court prior to the first day of the October 1947 Term thereof and failing to pay the required docket fee at the said first day of the term failed to perfect his appeal as required by the prior mentioned Section of the Statute even though 10 days had not elapsed between the date of the trial in Justice Court and the first day of the October Term 1947 of this Court.' Accordingly it was ordered that the appeal had not been perfected, and that the order for the issuance of procedendo be sustained.
The pertinent statute is section 165, chapter 96, '35 C.S.A. which reads as follows: 'If any person convicted of any criminal offense, Before any justice of the peace shall wish to appeal to the county court, he or she shall within ten (10) days from the day of such conviction, enter into a bond to the people of the state of Colorado in a penalty * * * conditioned for the payment of the * * * judgment * * * and for the defendant's appearance in said county court on the first day of the next term thereof * * *; which the said party appealing shall execute, with sufficient security to be approved by said justice of the peace, * * *, and thereupon the said justice of the peace shall * * * return all papers with a transcript of his trial docket in the case to said county court prior to the next succeeding term of said court, wherein the said cause may be tried as provided by law; provided, that if such appellant shall not pay the docket fee of five dollars required by said county court at the first day of said term thereof, then the said...
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Cokley v. People
...and in favor of those against whom such statutes are sought to be enforced. Calkins v. Alibi, Colo., 431 P.2d 17; O'Brien v. People, 118 Colo. 58, 192 P.2d 428; O'Day v. People, 114 Colo. 373, 166 P.2d 789; Polly v. People, 107 Colo. 6, 108 P.2d 220; Failing v. People, 105 Colo. 399, 98 P.2......
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Kidd v. Clark County Equalization Bd.
...the appeal or error proceedings, and to dismissals for want of authority in appellant to maintain the proceeding. In O'Brien v. People, 118 Colo. 58, 192 P.2d 428 (1948), the appellant was found guilty in a justice of the peace court of careless driving. The appellant filed an appeal to cou......