Drennen v. Johnson
| Decision Date | 02 December 1918 |
| Docket Number | 9088. |
| Parties | DRENNEN v. JOHNSON. |
| Court | Colorado Supreme Court |
Department 3.
Error to District Court, Yuma County; H. P. Burke, Judge.
Action by L. G. Johnson against Ralph R. Drennen. There was judgment for plaintiff in the county court, and defendant appealed to the district court, where plaintiff moved to remit and remand the transcript. To review an order granting such motion defendant brings error. Reversed.
Archibald A. Lee, of Denver, and F. E. Pendell, of Casper, Wyo., for plaintiff in error.
Stephenson & Stephenson, Arlington Taylor, and C. E. Robison, all of Ft Morgan, for defendant in error.
This is an action originally instituted in the county court of Morgan county by L. G. Johnson, hereinafter called the plaintiff against Ralph R. Drennen, hereinafter referred to as the defendant. The case was decided in favor of the plaintiff, in the county court, and the defendant thereafter and within the time allowed by law filed an appeal bond in that court. The bond being approved, and all costs having been paid as prescribed by law, the county court on August 28, 1916, lodged the case with the clerk of the district court, delivering to the clerk all of the papers pertaining to the case.
On September 28, 1916, the plaintiff filed a motion in the district court 'to remit and remand the transcript and all the files' in the case to the county court where the action was originally tried. The motion was granted. The defendant brings the cause here for review, assigning as error the action of the district court in sustaining the motion to remand the case to the county court.
The motion to remand was predicated upon plaintiff's interpretation of the following clause in section 1538, R. S. 1908 (section 1662, Mills' Ann. Sts. 1912):
'* * * And in case the appeal is not docketed by the appellant in the district court within thirty days after being lodged with the clerk of the district court, the transcript shall be remitted by the clerk of the district court to the county court; and the county court shall proceed on said judgment as though no appeal had been taken.'
The motion was framed on the theory that the cause was 'not docketed by the appellant,' within the meaning of the statute, because 'no docket fees were paid by defendant within thirty days after lodging of the transcript in the office of the clerk of the district court.'
It is conceded that the cause was physically docketed on the same day that the papers were received by the clerk of the district court. The clerk on that date, August 28, 1916, entered in the register of actions, a book kept for that purpose, the title of the case, together with the notation that it was a 'money demand' and an 'appeal from county court.' The cause was numbered 3068 in the register of actions. The number so given to the case was the next consecutive number immediately following all previously docketed causes in the district court.
No docket fee was paid at any time within 30 days after the papers were delivered to the clerk of the district court. The plaintiff contends that because of this fact, and notwithstanding the circumstances that the clerk actually docketed the case, the case was not 'docketed by appellant,' within the meaning of the appeal statute hereinbefore quoted.
Aside from a rule of court, hereinafter noted, this contention appears to be made in reliance upon certain expressions found in Tierney v. Campbell, 7 Colo.App. 299, 44 P. 948, and Thomas v. Beattie, 42 Colo. 236, 93 P. 1093. In the latter case the court, among other things, said:
'The purpose of the statute was to prevent unnecessary delay by requiring the appellant to promptly docket his appeal in the district court by paying the fee required for that purpose.'
In neither of the two cases just cited did the facts show the actual docketing of the case by the clerk. Both of these cases are referred to and discussed in Wigton v. Wigton, 169 P. 133, and shown not to be decisive of a case where, as here, the clerk docketed the case.
In the Wigton Case this court regarded a cause a docketed by the appellant in the district court where the clerk entered the case upon the docket without first collecting the docket fee. Docketing the case and paying the docket fee are two distinct acts. The statute relied on by plaintiff to uphold the judgment of the trial court expressly refers to the act of having the case 'docketed by the appellant,' but makes no mention of the payment of the docket fee. Doubtless under section 2528, R. S. 1908, which provides that clerks of courts may require a deposit in...
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McClelland v. Gorrell's Estate
...See Seaboard Nat. Bank v. Fisher, 98 Vt. 20, 124 A. 588;Wright v. Walker County Fertilizer Co., 164 Ga. 260, 138 S.E. 151;Drennen v. Johnson, 65 Colo. 381, 176 P. 479. It will be noted that the appellee concedes that the sum of $4.55 was paid within the time required. Such sum of $4.55 was ......
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People v. Davenport, 98CA2387.
...to enter default judgment at the first hearing. Filing a response and paying the docket fee are two distinct acts. Drennen v. Johnson, 65 Colo. 381, 176 P. 479 (1918). The case cannot proceed to a final determination until the fee is paid, but it is not improper for the court to allow the p......
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Miller v. Charnes
...distinct acts, and once a pleading is accepted for filing the striking of the pleading is not a proper sanction. See Drennen v. Johnson, 65 Colo. 381, 176 P. 479 (1918). Thus, the trial court did not err in denying plaintiff's motion to strike defendant's Judgment affirmed. PIERCE and STERN......