Cooper v. American Cent. Ins. Co.

• Decision Date: 01 April 1877
• Citation: 3 Colo. 318
• Parties: COOPER et al. v. AMERICAN CENTRAL INS. CO.
• Court: Colorado Supreme Court

3 Colo. 318

COOPER et al. v. AMERICAN CENTRAL INS. CO.

Supreme Court of Colorado

April, 1877

Error to District Court of Pueblo County.

THIS is a writ of error to the district court of Pueblo county, to reverse a judgment rendered in the above cause by Hon. JAMES B. BELFORD, associate justice at the December term, A. D 1874, of said court. The cause was tried by the court without the intervention of a jury, and is brought here upon errors assigned, which are all substantially of a like import, viz: that the judgment in said cause is coram non judice, being entered when the court in fact was not in session, and when in law it could nto be in session in Pueblo county. That the said judgment by the record thereof does not appear to be the sentence or consideration of the law as to the matters in controversy, but the mere personal order of the presiding justice, not rendered in term time, nor in court, but filed in vacation in the clerk's office.

Mr CHAS. E. GAST, for plaintiffs in error.

Messrs BLAKE & JACOBSON, and Mr. BENJ. MATTICE, for defendant in error.

ELBERT J.

In this case the judgment appears to have been rendered and entered of record in vacation. The record does not show when, in fact, the court did adjourn, but this court takes judicial notice of the terms of the district courts in the several judicial districts, as fixed by law.

The December term of the district court for the county of Pueblo commenced on the second Tuesday of December, 1874. The January term of the same court for the county of Las Animas commenced on the first Tuesday of January, 1875. Sess. Laws, 1844, p. 88. The district court for one county cannot lawfully continue in session therein, after the day appointed by law for the holding of the court in another county in the same district. Grable v. The State, 2 Green, 559; Archer v. Ross, 2 Scam. 303.

By fixing the time for the commencement of the term of the court in one county, the law, by necessary implication, limits the duration of the term of the court immediately preceding in another county of the district, and unless sooner terminated by adjournment, the term will expire, by limitation of law, at the time fixed for the succeeding term.

The December term, 1874, of the district court for the county of Pueblo, at which this case purports to have been tried, could not, therefore, have extended beyond the first Tuesday in January, 1875, the day fixed by law for the commencement of the term in Las Animas county. The first Tuesday in January, 1875, was the 5th day of the month.

The issues were made up at the June term, and the cause continued to the December term, 1874.

An entry on the 11th day of January, 1875, shows that the defendants on that day filed their motion for a new trial and this is the first intimation which the record gives that a trial had been had. The next entry is to the effect that afterward, and on the 19th of January, 1875, the associate justice presiding at the December term, 1874, of the district court of said Pueblo county 'filed in the office of the clerk thereof a certain judgment,' which is set forth in extenso, and...