Kirkpatrick v. Wheeler

• Decision Date: 13 November 1885
• Parties: KIRKPATRICK v. WHEELER.
• Court: Colorado Supreme Court

8 P. 654

8 Colo. 414

KIRKPATRICK v. WHEELER.

Supreme Court of Colorado

November 13, 1885

Appeal from an order made by the district court, Pitkin county.

E O. Wolcott, for appellee.

Patterson & Thomas, for appellants.

PER CURIAM.

The order appealed from was made and entered of record by the court below during the progress of proceedings in the case of Kirkpatrick v. Fiske and others. The transcript before us shows that Kirkpatrick brought this action against the appellants to recover an interest which he claimed to own in the Emma mine, and also to recover his proportion of moneys alleged to have been realized by the defendants from the sales of ores taken from said mine. The order appealed from required one E. R. Holden, into whose hands moneys thus arising had come as receiver of the Emma mine, to deposit all such moneys in his hands in the Denver National Bank, subject to the further order of the court. Jerome B. Wheeler, one of the above-named defendants appealed from this order under the provisions of an act of the fifth general assembly entitled: 'An act in relation to appeals to the supreme court,' etc., and attempted to make his appeal operate as a supersedeas, so as to prevent Holden from making the deposit.

The record concerning this appeal has been filed in this court and upon this record we are asked to enter an order that these moneys be released, and that the district court pay over, or cause these moneys to be paid, to the appellant Wheeler, or to persons whom he may designate.

It will not be necessary for us to consider the legal effect of an appeal of this character, regularly taken under the act mentioned, since we must decline to grant the relief sought on other grounds, viz., the irregularity of the appellate proceedings. The order appealed from is a part of the record proper, and was duly entered therein by the clerk of the district court. To this entry alone can we look for information as to what was ordered by the court. A bill of exceptions was prepared on behalf of Wheeler, and signed by the district judge, which purports to set out the same order and it appears that the appellate proceeding is based to a large extent upon the order as it appears therein. We find also that this order differs in some important particulars from the original order, as entered of record by the clerk of the court. It is a well-settled principle of law that what belongs to the record proper, and...