Callahan v. Jennings

• Citation: 27 P. 1055,16 Colo. 471
• Parties: CALLAHAN et al. v. JENNINGS.
• Decision Date: 06 November 1891
• Court: Supreme Court of Colorado

27 P. 1055

16 Colo. 471

CALLAHAN et al. v. JENNINGS.

Supreme Court of Colorado

November 6, 1891

Appeal from district court, El Paso county; WILLIAM HARRISON, Judge.

Action of replevin by John Jennings against A. P. Callahan and others, begun in the county court. Judgment was there rendered for plaintiff, and defendants appealed to the district court, where the appeal was dismissed. Defendants appeal from the order of dismissal. Reversed.

Syllabus by the Court

1. The entry of a special appearance for the purpose of moving to dismiss an appeal, even though different grounds of dismissal are urged, is not a general appearance.

2. An order by the county court granting an appeal, and fixing a time for filing the appeal-bond, is necessary. But when such order is silent as to whether the appeal is allowed to the district or supreme court, and a bond properly conditioned is approved and filed perfecting the appeal to the former court it will be presumed that the proceeding was regular, and the appeal will be sustained, even though the order also specifies time for filing a bill of exceptions.

3. A statutory right to have cases reviewed on appeal may be taken away by a repeal of the statute, even as to causes which have been previously appealed.

4. The foregoing principle applies to causes pending on appeal for trial de novo as well as to those taken up for review; and such repeal may be implied as well as express.

5. But the doctrine of implied repeals should in such cases be recognized with greater reluctance, if possible, than in cases where vested property rights are acquired under statutes repealed.

6. There is no constitutional right to an appeal from the county court to the district court; such right exists only when the legislature has expressly or by clear implication declared in its favor.

7. The title, 'An act to amend sections 16 and 17,' does not authorize or permit the express repeal of those sections.

8. Under proper conditions, the void portions of a section or act may be rejected, and the valid portions be permitted to stand.

9. A statute can only be constitutionally amended by re-enacting and publishing at length the portions affected by the amendment.

10. When thus amended, no repeal of the portions retained has taken place. The original provisions appearing in the amended act are to be regarded as having been the law since they were first enacted, and the new provisions are to be understood as enacted at the time the amended act took effect.

T. J. O'Donnell, for appellants.

Campbell & McIntyre, for appellee.

HELM, C.J.

This suit in replevin was begun in the county court. Judgment was there rendered for a return of the property in controversy or, if such return could not be had, for the value thereof fixed at the sum of $600. Appellants, who were defendants below, subsequently appeared, and, their motion for a new trial being overruled, gave notice of an appeal, without, however, specifying in the notice whether such appeal was desired to the district or supreme court. The county court thereupon entered an order 'that said appeal be allowed, and defendants have twenty days to file their appeal-bond in the sum of $1,500, and bill of exceptions.' Within the time thus specified, defendants tendered, and the proper officer approved and filed, an appeal-bond in the sum mentioned by the order, conditioned according to the law regulating appeals to the district court. Thereafter, the necessary transcript and papers having been filed in the district court, appellee, who was plaintiff below, appeared and moved to dismiss the appeal. This motion was sustained, and the appeal dismissed. To review the action of the district court in the premises, the present appeal was taken. The act of 1885, providing for appeals to this court, being then in force, the review may take place though the judgment challenged was for costs only.

The motion filed in the district court did not constitute a general appearance, as counsel for appellants contend. It recites 'that plaintiff herein enters his special appearance in this action for the purpose of this motion, and for such purpose only, and moves the court to dismiss the appeal taken.' The fact that different grounds for dismissal were then specified did not change the character of the special appearance to which the motion was limited. These grounds all bore upon the regularity and sufficiency of the steps taken in attempting to perfect the appeal to the district court, and its jurisdiction through the appeal to try the cause. Every allegation therein was directed to the same end, viz., the dismissal of the appeal. It would indeed be a paradoxical ruling that should hold the appearance of a party specially for the purpose of dismissing an appeal to constitute such a general appearance as waives the right to the dismissal prayed for. Law v. Nelson, 14 Colo. 409, 24 P. 2. The appeal in question was taken under section 499, Gen. St. 1883. All requirements of this section appear to have been complied with. The mere fact that the application did not specify the court to which the appeal was desired is not fatal. Nor is the further fact that the court, in entering the order granting the appeal and fixing the time for filing the bond, added a phrase providing for a bill of exceptions, decisive against the appeal. Such orders are undoubtedly necessary official acts; but when they are silent as to whether the appeal is to the district or supreme court, if within the time specified a bond properly conditioned be approved and filed perfecting an appeal to the district court, the presumption of regularity ordinarily attaching to the proceedings of courts of record will be indulged. The incidental circumstance that the order in the present case was broad enough to permit an appeal to the supreme court should not be held to invalidate the appeal actually taken. The original appeal, therefore, was, in our judgment, sufficiently perfected, and the cause was pending for hearing in the district court.

This brings us to the main contention in the present case, viz that the section above mentioned, under which the appeal was prosecuted, was repealed before the cause was called for trial in the district court. If this be true, and if there is no saving clause in the act, the appeal, provided it was purely a statutory right, fell, and the court was left without jurisdiction save to enter the order of dismissal. 'A statutory right to have cases reviewed on appeal may be taken away by a repeal of the statute, even as to causes which have been previously appealed.' Cooley, Const. Lim. § 474; Sedg. St. & Const. Law, pp. 108-116, notes; Ex parte McCardle, 7 Wall. 506. The principle applies to causes pending on appeal for trial de novo, as well as to those taken up for review. Smith v. District Court, 4 Colo. 235; Harrison v. Smith, 2 Colo. 625. We cannot concede the correctness of counsel's position that appeals from the county to the district court are a constitutional right. The language of the constitution is: 'Appeals may be taken from county to district courts, or to the supreme court, in such cases and in such manner as may be prescribed by law. Writs of error shall lie from the supreme court to every final judgment of the county court. * * *' The provision does not declare that appeals may be taken from all final judgments of the county court. It is only with reference to writs of error from the supreme court that the language is thus comprehensive. It is left for the legislature to prescribe the kinds or classes of cases in which appeals shall lie, as well...