Burchinell v. Bennett
| Decision Date | 13 September 1897 |
| Citation | 10 Colo.App. 150,50 P. 206 |
| Parties | BURCHINELL, Sheriff, v. BENNETT et al. |
| Court | Colorado Court of Appeals |
Appeal from district court, Arapahoe county.
Action by Amanda M. Donnelly against William K. Burchinell, sheriff. There was a judgment for plaintiff, and defendant appealed. On plaintiff's subsequent death, Marie D. Bennett and Willard Milligan, executors of her will, were substituted. Appeal dismissed.
Joseph N. Baxter and John C. Fitnam, for appellant.
S.L Carpenter, for appellees.
This action was brought by Mrs. Donnelly against Burchinell, the sheriff, to recover certain goods on which he had levied, and which she claimed under a chattel mortgage given by the San Francisco Tea Company, who were her debtors when the security was executed. The contest, of course, was between the attaching creditor and the plaintiff, and the question litigated was the good faith of the transaction; the attaching creditor predicating his right principally on the invalidity of the security, both as respects its form, and as respects the circumstances of its execution and delivery. The case was tried to the court without a jury, and on the completion of the evidence the court took it under advisement, and ultimately, on the 14th of November, entered a judgment for the plaintiff, thereby sustaining the legality of the instrument and the good faith of the transaction. Formal judgment was entered, and afterwards a motion for a new trial was filed, which was not heard or determined until the 17th of December following. On that date the court directed the plaintiff to remit about $140, and, in default of such remittitur, stated that the judgment would be set aside. Time was given for the consideration of the matter and the plaintiff ultimately remitted the sum which the court suggested; and the motion for a new trial was denied, and the defendant then prayed an appeal to this court. The case was brought here, and afterwards the appellee made a motion to dismiss the appeal because it was not prayed in time, under the statute. The motion was not decided, but the parties were directed to present it on final hearing; and both sides have in their briefs, discussed the question. We are clearly of the opinion that the appeal cannot be maintained, because it was not prayed in apt time. The law is well settled that there must be a strict compliance with the statute, to preserve appellate rights. Hamill v....
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Romero v. Mcintosh.
...147 Cal. 424, 81 Pac. 1105; Freas v. Townsend, 1 Colo. 86; Slatterly v. Robinson, 7 Colo. App. 22, 42 Pac. 179; Burchinell v. Bennett, 10 Colo. App. 150, 50 Pac. 206; Hill v. Hill, 114 Mich. 599, 72 N. W. 597; Selig v. Akron, etc., 10 O. C. D. 535, 19 Ohio Cir. Ct. R. 633; Brown v. Coal Co.......
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...147 Cal. 424, 81 P. 1105; Freas v. Townsend, 1 Colo. 86; Slatterly v. Robinson, 7 Colo. App. 22, 42 P. 179; Burchinell v. Bennett, 10 Colo. App. 150, 50 P. 206; Hill v. Hill, 114 Mich. 599, 72 N.W. 597; Selig v. Akron, etc., 10 O. C. D. 535, 19 Ohio Cir. Ct. R. 633; Brown v. Coal Co., 48 Oh......
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