Law v. Nelson

• Decision Date: 16 May 1890
• Citation: 24 P. 2,14 Colo. 409
• Parties: LAW v. NELSON.
• Court: Colorado Supreme Court

24 P. 2

14 Colo. 409

LAW v. NELSON.

Supreme Court of Colorado

May 16, 1890

Appeal from district court, Lake county.

The section of the statute refererd to in the opinion is as follows: '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 of the county court affirmed or the appeal dismissed, at his option.' Sess Laws 1885, p. 159.

Syllabus by the Court

1. An appeal is not taken from the county to the district court by reason of the fact that it is 'prayed and allowed.' The appeal-bond must be filed and approved before the appeal can be considered 'taken,' that is, perfected; and if this be not done on the day on which judgment is rendered the appeal may be dismissed.

2. A motion confined to the single object of enforcing a statutory right, though not special in form, cannot be considered a waiver of such right, as by a general appearance for other purposes.

D. E. Parks, for appellant.

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

Nelson, who was plaintiff below, brought suit against Law in the county court of Lake county. The case was tried May 13, 1886, resulting in judgment for the sum of $50 and costs in favor of plaintiff. An appeal was prayed and allowed upon conditions, on the same day, as shown by the record, as follows: 'To which order and judgment, and to the rendering thereof by the court, said parties, and each of them, by their counsel, except and pray an appeal therefrom, each of them, to the district court, which prayers are hereby granted, provided said parties file their appeal-bonds herein within ten days from this date. Said plaintiff's bond to be in the sum of one hundred dollars, and said defendant's as fixed by law. Said bonds to be conditioned as required by law.' On May 20, 1886, an appeal-bond by the defendant, Law, was filed and approved in the county court. On May 3, 1887, plaintiff's attorney filed a motion in the district court to dismiss the appeal, in the following words: 'And now comes the plaintiff, by A. W. Stone, his attorney, and moves the court to dismiss the appeal in said cause on the ground that no notice, in writing, stating that an appeal had been taken from the judgment rendered in the county court of said county, has ever been served on the plaintiff or his attorney.' The motion was accompanied by the attorney's affidavit to the effect that notice in writing of the appeal had not been served upon him, and that he was informed and believed that no such notice had ever been served upon plaintiff, and that plaintiff was absent from the county. This was the only showing made by either party as to the question of notice. Upon this motion and affidavit the district court dismissed the appeal. To reverse the judgment of dismissal, the defendant brings the cause to this court.

The principal question presented by the assignment of errors relates to the construction of section 4 of the act of 1885 p. 159, concerning appeals from county to district courts. Since this cause was brought to this court the question has been determined in another case. The construction given by this court may be stated thus: An appeal is not 'taken' from the county court to the district court, within the meaning of the act of 1885, by...