Hughes v. Cummings

• Decision Date: 04 January 1884
• Citation: 2 P. 289,7 Colo. 138
• Parties: HUGHES v. GUMMINGS and another.
• Court: Colorado Supreme Court

2 P. 289

7 Colo. 138

HUGHES v. GUMMINGS and another.

Supreme Court of Colorado

January 4, 1884

Every intendment will be made in favor of the jurisdiction and proceedings of a court of general jurisdiction, and, unless the contrary appears, it is presumed to act rightly, when acting within the scope of its powers.

The jurisdiction of the county court must be tested by its own record in collateral actions, and cannot be impeached by allegation merely.

If the county court acts within its jurisdiction in reinstating a case on the calender, the district court has no power to revise or nullify its action.

Section 75, Code Civil Proc., authorizes a court to relieve a party from a judgment or order taken against him through surprise or excusable neglect; and when, for any cause satisfactory to the court, or judge at chambers, the party aggrieved was unable to apply for the relief at the term when the judgment or order was taken, it may be done in vacation within five months after the adjournment of the term.

Error to the district court of Clear Creek county.

C. C. Post and W. T. Hughes, for plaintiff in error.

R S. Morrison, for defendants in error.

BECK C.J.

The controlling question presented by this record is whether the district court had the power, in a collateral proceeding, to pass upon the validity of an order made by the county judge reinstating a certain cause upon the docket of the county court. If the district court did not possess such power, it is immaterial, so far as the present action is concerned whether the action of the county judge was erroneous or otherwise; for, if erroneous, the error can only be corrected in a direct proceeding.

This is an action upon an appeal bond, executed by the defendants in error to perfect an appeal from a judgment of a justice of the peace to the county court. One Henry B. Beighley recovered a judgment before the magistrate for the sum of $200 and costs of suit against the defendant in error Owen Cummings. From this judgment Cummings took an appeal to the county court, but failing to prosecute his appeal it was dismissed for want of prosecution, and for failure of the appellant to comply with a rule entered against him by the county court requiring payment of certain costs.

The complaint in the present action avers that said judgment was assigned by the plaintiff Beighley to Hughes, the plaintiff in error, on the same day which the appeal was dismissed. The defendants in error set out in their answer, by way of abatement of this action upon the appeal bond, an order of the county judge reinstating the appeal upon the docket of the county court alleging in this connection that there was no final judgment in the cause so appealed, but that the same is still pending and undetermined in said county court. Plaintiff in error replied, averring, among other matters, that he is and has been the sole and exclusive owner of the judgment from the day of the dismissal of the appeal, and that neither he nor said Beighley had notice of the institution of proceedings to reinstate the appeal. To this replication the district court sustained a demurrer, and gave judgment that the defendants go without day.

This being a collateral action, the ruling of the district court was correct, unless it appears from the records of the county court that the latter court acted without jurisdiction in reinstating the appeal. If the county court can be said to have acted within its jurisdiction, the destrict court had no power to either revise or nullify its action.

The order was made by the county judge at chambers 17 days after the adjournment of the term at which the appeal was dismissed. Statutory authority for such an order is found in section 75 of the Code of Civil Procedure, (1877,) which provides, among other things, that 'the court may, upon such terms as may be just and upon payment of costs, relieve a party, or his legal representatives, from a judgment order, or other proceeding taken against him through mistake, inadvertence, surprise, or excusable neglect, and when for any cause...