Heil v. Simmonds

• Decision Date: 21 December 1891
• Citation: 28 P. 475,17 Colo. 47
• Parties: HEIL et al. v. SIMMONDS.
• Court: Colorado Supreme Court

28 P. 475

17 Colo. 47

HEIL et al. v. SIMMONDS.

Supreme Court of Colorado

December 21, 1891

Error to district court, Arapahoe county.

Action by George Simmonds against Louis N. Heil and George H. Smith. Judgment for plaintiff. Defendants bring error. Affirmed.

The other facts fully appear in the following statement by ELLIOTT, J.:

In this action judgment was rendered in the county court in favor of Simmonds, plaintiff, against Heil and Smith, defendants. Thereupon the cause was taken by appeal to the district court. Upon the docketing of the cause in the district court Simmonds applied for and obtained a dismissal of the appeal on the ground that notice of the appeal had not been served upon him as required by law. From the judgment dismissing the appeal, Heil and Smith bring the cause to this court by writ of error. Section 4 of the act of 1885, upon which the controversy arises, reads as follows: 'If the appeal be not taken on the same day on which the judgment is rendered the appellant shall serve the appellee, or his attorney of record, within five days after the appeal is taken, with a notice, in writing, stating that an appeal has been taken from the judgment therein specified, which notice shall be served by delivering a copy thereof to such appellee or his attorney of record. If the appellant fail to give notice of his appeal when such notice is required, the appellee may, at any time before such notice is actually served, and after the time when it should have been served, have the judgment of the county court affirmed or the appeal dismissed, at his option.'

Syllabus by the Court

1. Under the act of 1885, an appeal from the county court to the district court is not taken until the appeal-bond is filed and approved.

2. Section 4 of said act requires the notice to be served after the appeal is taken. Service of notice before the appeal is taken is ineffectual to prevent appellee from having the appeal dismissed.

3. A remedial statute should be liberally construed, whenever such construction will advance the remedy intended, but not when it will defeat the object of the statute.

4. The statute, in effect, grants a certain right to appellee in case appellant does not comply with its terms; hence it must be held mandatory.

D. V. Burns and Goudy & Sherman, for plaintiffs in error.

George Simmonds, C. D. May, and Ralph Talbot, for defendant in error.

ELLIOTT, J., ( after stating the facts.)

The only matter assigned for error is the action of the district court dismissing the appeal from the judgment of the county court. From the record it appears that judgment was rendered in the county court on August 19, 1890. The appeal-bond was filed and approved August 22, 1890. Under the statute then in force, as the same has been frequently construed by this court, the appeal was not taken until the bond was filed and approved. Sess. Laws 1885, p. 158; Hunt v. Arkell, 13 Colo. 543, 22 P. 826; Law v. Nelson, 14 Colo. 409, 24 P. 2; Straat v. Blanchard, 14 Colo. 445, 24 P. 561. From the bill of exceptions it appears that after the rendition of the judgment by the county court, but before the filing and approval of the appeal-bond, the defendants served upon plaintiff written notice to the effect that they had appealed from the judgment rendered against them in the county court to the district court. This notice was not in accordance with the facts, as the appeal had not then been taken, nor was it in compliance with section 4 of the act of 1885, supra. The statutory notice is required to be served after the appeal is taken, not before; it is a notice of an act performed, not of an act to be performed. In this case no notice was served after the appeal was taken, nor was there any waiver by Simmonds of his statutory right to have the appeal dismissed, as in the cases of Robertson v. O'Reilly, 14 Colo. 441, 24 P. 560, and Coby v. Halthusen, 16 Colo. ----, 26 P. 148. At the very first opportunity, and without taking any other step in the premises, Simmonds appeared specially in the district court, and moved for the dismissal of the appeal in accordance with the terms of the statute. The contention that he was estopped from asserting his statutory rights...