Catlin v. Vandegrift

• Decision Date: 07 December 1914
• Docket Number: 8049.
• Citation: 144 P. 894,58 Colo. 289
• Parties: CATLIN v. VANDEGRIFT.
• Court: Colorado Supreme Court

144 P. 894

58 Colo. 289

CATLIN v. VANDEGRIFT.

No. 8049.

Supreme Court of Colorado

December 7, 1914

Error to District Court, Montrose County; Thomas J. Black, Judge.

Action by William Vandegrift against Frank D. Catlin, Jr. administrator of the estate of H. S. Hanthorne, deceased. Judgment for plaintiff, and defendant brings error. Affirmed.

Catlin & Blake, of Montrose, for plaintiff in error.

John Gray and Ralph E. Waldo, both of Montrose (Philip W Mothersill, of Denver, of counsel), for defendant in error.

BAILEY J.

The action was by defendant in error, William Vandegrift, as plaintiff below, against one H. S. Hanthorne in the County Court of Montrose County, to recover a commission alleged to be due plaintiff for a sale of real estate. The complaint was filed February 10th, 1912, and certain property of the defendant was attached. By stipulations between the parties the attached property was sold and the proceeds of sale placed in court to await the outcome of the cause. In August, 1912, the death of Hanthorne was suggested to the court, and the cause was continued in the name of Frank D. Catlin, Jr., Administrator, etc., as defendant. Defendant answered by general denial. Trial was had to a jury, and a verdict for defendant was returned on December 17th, 1912. On the incoming of the verdict, in open court, notice of motion for a new trial was given, and the motion filed two days thereafter. On January 9th, 1913, an additional motion for a new trial was filed. These motions were treated as one, upon which argument was had, and on January 11th were overruled and judgment rendered and entered of record for defendant in accordance with the verdict.

Plaintiff undertook an appeal to the District Court of that county. The appeal bond, as appears on its face, was approved January 21st, 1913, but was indorsed 'Filed this 23rd day of January, A. D. 1913.' January 22nd, 1913, an order was entered in the cause in the County Court directing the transmission of the record to the District Court, in which it was recited 'that the bond of appeal has been filed and approved in manner and form as required by law, and all other things necessary to be done therein have been done to complete this appeal,' and on the 24th of that month the case was lodged in the District Court. Defendant appeared specially and filed a motion to dismiss the appeal, upon the grounds that it was not taken within the time prescribed by the statute, and that the appeal bond was defective in that it does not comply with the provisions of the statute, and did not, therefore, confer jurisdiction upon the District Court, which was argued by counsel for the respective parties, and overruled on March 25th, 1913. The order also contained a finding that the appeal bond was defective, but that there was an honest effort made to file a sufficient one, and ten days were allowed plaintiff in which to file such a bond or suffer a dismissal of the appeal by default. Defendant elected to stand on his motion to dismiss, and declined to appear further. Judgment was rendered against him for the amount prayed, upon trial to the court, the plaintiff having waived a jury. Defendant brings the case here for review on error.

The first matter urged is that the appeal bond from the County to the District Court was not filed within ten days after judgment, as provided by statute. This involves the question of when the judgment was rendered by the County Court. Plaintiff in error contends that, as the verdict was returned on December 17th, 1913, and no order reserving the cause for argument or further consideration, or granting a stay of proceedings, was made, judgment was by operation of law rendered of that date, entry thereof being a purely ministerial duty, under and by virtue of Section 243 of the Code of 1908, which reads as follows:

'When trial by jury has been had, judgment shall be entered by the clerk in conformity to the verdict, within twenty-four hours after the rendition thereof, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings; but such entry of judgment shall not prejudice any motion for a new trial made in due time.'

Defendant in error says that as a motion for a new trial was made in due time, argued by respective counsel overruled and judgment rendered, in conformity with the verdict, on January 11th, 1913, this is the date of the judgment. It is true the record discloses no order reserving the cause for argument or further consideration, or stay or proceedings granted, but it does show a motion for new trial interposed in due time upon notice given in court immediately after the return of the...