Hunt v. Arkell

• Decision Date: 06 December 1889
• Citation: 13 Colo. 543,22 P. 826
• Parties: HUNT v. ARKELL et al.
• Court: Colorado Supreme Court

22 P. 826

13 Colo. 543

HUNT v. ARKELL et al.

Supreme Court of Colorado

December 6, 1889

Appeal from district court, Pitkin county.

In the month of January, 1886, appellees, as plaintiffs, instituted suit in the county court of Pitkin county against appellant as defendant, for the purpose of recovering certain commissions claimed upon the sale of a mine. The defendant having appeared and answered, the cause was tried to the court in the month of March, following. The trial resulting in favor of the appellees, judgment was accordingly entered upon the 12th day of said month of March. It also appears that an appeal to the district court was prayed and allowed on that day. Upon March 18th, appellant filed a motion for a new trial, and upon March 20th, leave of court having been first obtained therefor, an amended motion for a new trial was filed. Upon March 20th the appellant also applied to the court for additional time within which to perfect an appeal which motion was granted, and 10 days' additional time given by the court. The motion for a new trial was argued by counsel, and submitted to the court, for its decision thereon, upon March 25th, and overruled upon the following day. And thereupon, and on the same day, in open court and in the presence of the attorneys for appellees, a bond for an appeal to the district court was tendered, approved, and filed by the court. After the cause reached the district court, a motion was made by appellees to affirm the judgment rendered by the county court, for the reason that a written notice of the appeal had not been served upon appellees or their attorneys, as provided by section 4 of the act of 1885 regulating appeals from the county to the district court. After argument, the motion was sustained, and the judgment affirmed by the district court, from which judgment of affirmance this appeal was taken. Section 4 of the act under which the appeal was taken reads as follows, viz.: 'Sec 4. 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...