Diamond Tunnel Gold & Silver Mining Co. v. Faulkner

• Decision Date: 25 April 1890
• Citation: 24 P. 548,14 Colo. 438
• Parties: DIAMOND TUNNEL GOLD & SILVER MIN. CO. et al. v. FAULKNER et al.
• Court: Colorado Supreme Court

24 P. 548

14 Colo. 438

DIAMOND TUNNEL GOLD & SILVER MIN. CO. et al. v. FAULKNER et al.

Supreme Court of Colorado

April 25, 1890

Appeal from district court, Clear Creek county.

A judgment for $900 was rendered against the Diamond Tunnel Gold & Silver Mining Company, but there was no judgment for money against any of the other defendants. A joint appeal was prayed and allowed.

W. T. Hughes, for appellants.

Morrison & Fillins, for appellees.

HAYT J.

By the law governing appeals to this court, in force at the time this appeal was taken, it is provided that 'appeals to the supreme court from the district, county, and superior courts shall be allowed in all cases where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of one hundred dollars, or relate to a franchise or freehold.' Sess. Laws 1889, p. 77. The motion to dismiss the appeal is based principally upon the ground that as to said appellants, other than the Diamond Company, there was no final judgment or decree against them upon which an appeal would lie; that is to say, there was no final judgment or decree against such appellants or either of them, amounting to the sum of $100, exclusive of costs, or relating to a franchise or freehold. Appellee contends that as the appeal is joint, it must be dismissed upon this motion unless all the defendants were entitled to an appeal. In support of this position the following decisions of this court are cited: Andre v. Jones, 1 Colo. 489; Fuller v Placer Co., 5 Colo. 123. In the first of the above cases Jones had recovered judgment against two defendants, who prayed and were allowed a joint appeal. Within the time given for such appeal, one of the defendants only filed the required bond, the other defendant not joining in the appeal. Upon the case reaching this court, a motion to dismiss the appeal was sustained, the court holding that, while the defendants might have prayed joint and several appeals, they did not do so, but both united in the only appeal which was prayed, and that such a joint appeal could not be prosecuted by one alone. In the subsequent case of Fuller v. Placer Co., supra, the case of Andre v. Jones was expressly affirmed, and it was further held that the statute of 1879, authorizing one of several defendants to remove a case to this court by appeal, and permitting him, in such case, to use the names of all the defendants if deemed necessary, did not affect the rule that a joint appeal by all the defendants must be prosecuted by all. Applying...