Daum v. Conley

• Decision Date: 19 December 1899
• Citation: 59 P. 753,27 Colo. 56
• Parties: DAUM et al. v. CONLEY et al.
• Court: Colorado Supreme Court

59 P. 753

27 Colo. 56

DAUM et al. v. CONLEY et al.

Supreme Court of Colorado

December 19, 1899

Appeal from district court, La Plata county.

Proceedings by John H. Conley and others against Peter Daum and others for an adjudication of water rights of the parties in the waters of Elbert creek, in water district No. 30. From a decree determining such rights, certain defendants appeal. Reversed.

F. C. Perkins and Talbot, Denison & Wadley, for appellants.

Reese McCloskey, for appellees.

GABBERT, J.

On November 27, 1894, under the statutes relating to the adjudication of water rights, proceedings were instituted in the district court of La Plata county for the purpose of adjudicating such rights in that part of water district No 30 taking water from Elbert creek. The referee appointed heard the evidence, and reported the same, with his findings of fact, and a decree fixing the respective priorities of the parties taking water from that stream. Subsequently a time was designated by the judge within which exceptions to such report, findings, and decree should be filed. Within that time Peter Daum and Frank Lochner, as the owners of the Daum ditch, filed their application for leave to introduce further evidence relative to the rights of their ditch, which was denied. Thereupon these parties and Thurlow, Hutton &amp Williams and R. C. Prewitt, as the owners of the Bishop ditch, filed their exceptions to such report, findings, and decree, within the time fixed for that purpose, which were overruled, and the decree confirmed, except that the amount of water awarded the Conley ditch was reduced. This was on the 22d day of April, 1897. On the 13th day of July following, the parties so excepting filed and presented their petitions for review of the decree, with additional evidence which was refused. It is claimed by appellants that these petitions are supported by affidavits, which are copied in what purports to be the transcript of record and bill of exceptions in the case. Thereafter, and on the same day these parties presented ex parte their statement of appeal, upon which an order was made allowing them an appeal to this court, in which order they were named as appellants; and the respective owners of the respective ditches named in their exceptions, and John Conley, as the owner of the Conley ditch, John A. Porter, as the owner of the Carson ditch, and J. W. Bowlen, as the owner of the Upper and Lower Bowlen ditches, were named as appellees. By this order the time within which appellants should file their appeal bond was also fixed. They complied with this order, and thereafter, on the 3d day of January, 1898, filed with the clerk of this court a transcript of record, and what they have designated a 'bill of exceptions.' This contains, over the certificate of the clerk of the district court, among other things, the decree and findings of the referee with respect to the ditches above named, which were adopted by the court, save in the particulars mentioned; the objections and exceptions of appellants thereto; the order overruling the same, and confirming the referee's decree, with the modification above noted; and, in the language of the certificate, 'all evidence relating to the Conley ditch, the L. Carson ditch, the Bishop ditch, the Bowlen Lower ditch, the Bowlen Upper ditch, and the Peter Daum ditch (omitting exhibits).' None of the appellees have appeared in this court, except Conley, who moves to dismiss the appeal upon various grounds, but we will only notice those argued: (1) Because no appeal was perfected within the time limited by the court at the time of entering the decree, nor was an appeal bond filed within the time fixed therefor, and because no transcript of the record or bill of exceptions was filed with the clerk of this court within six months after the allowance of the appeal. (2) Because the statement of appeal is not verified by either of the parties praying for the appeal. (3) Because the appellants waived their appeal by appearing and filing a motion for review, under section 2425, Mills' Ann. St., and are attempting to take one appeal from two separate and distinct actions. (4) Because no bill of exceptions has been filed, nor was an exception to the decree preserved.

The first ground of dismissal is insisted upon because appended to the order confirming the report of the referee, as modified, is a statement to the effect that appellants gave notice of their intention to appeal to this court, and, upon request for time within which to perfect it, were given 90 days for that purpose, and not having filed their bond within that time, and later having been granted, ex parte, 60 days from July 13, 1897,--the date upon which they presented the statement of appeal,--within which to file such bond, that this order is void. The method of taking appeals in matters of this character is regulated by section 2427, Mills' Ann. St. By this section, obtaining an order allowing an appeal is an ex parte proceeding. On the presentation of a statement by those desiring an appeal, if the court or judge finds it fulfills the requirements, an order is made allowing it, and fixing the amount of the appeal bond. This was the course pursued by appellants. When their statement was presented, and the appeal allowed, time within which to file a bond was fixed. This was the only way in which, under the statute, they could obtain an order allowing an appeal, and the recital in the order on the referee's report that they were given 90 days in which to perfect their appeal was without any effect. In this connection it is urged that unless parties appealing from a decree of this character are required to pray an appeal at the time of its rendition, and have time fixed within which to perfect it, there is no limitation imposed upon the time when it may be taken. There is undoubtedly a limit within which appeals of this character can be prosecuted. Section 2427, supra, is silent on that question; but impliedly it must be limited to some period with respect to the date of the decree, either by some other provision of the statute, or to a reasonable time after that date. The final order on the decree was April 22d. July 13th following, the statement of appeal was presented. There is no express provision of the act from which it can be inferred that the right to an appeal within that time was barred, and the statement was certainly presented within a reasonable length of time after the rendition of the decree. The period within which appellants were required to lodge their transcript of record with the clerk of this court would begin with the date their appeal was granted, and as they filed such transcript within the period provided by section 2429, Id., they were not in default in this respect.

The statement of appeal was verified by counsel for appellants, and for this reason it is claimed to be insufficient. Section 2427, supra, does not direct by whom the statement of appeal shall be verified. It merely says it shall be. This is not equivalent to directing that it must be by appellants, or some one of them. Ordinarily a pleading should be verified by the party presenting it, but this rule is not inflexible, for the verification of another may be substituted when good cause is shown therefor. Byrne v. Alas, 68 Cal. 479, 9 P. 850; Will v. Water Co. (Cal.) 34 P. 830; 1 Enc. Pl. & Prac. 326, note 1. The statement is verified by two of counsel for appellants, who state that the allegations therein are true, of their own knowledge, and that they make the verification on behalf of their respective clients because they are more familiar with the facts than they are. This showing is sufficient.

Appellants by availing themselves of the provisions of section 2425, Mills' Ann. St., in applying for a rehearing and review of the decree, have not waived their right to an...