Leppel v. District Court of Garfield County

• Decision Date: 07 November 1904
• Parties: LEPPEL v. DISTRICT COURT OF GARFIELD COUNTY et al.
• Court: Colorado Supreme Court

78 P. 682

33 Colo. 24

LEPPEL v. DISTRICT COURT OF GARFIELD COUNTY et al.

Supreme Court of Colorado

November 7, 1904

ORIGINAL PROCEEDINGS in certiorari by Betty Leppel, petitioner against the district court of Garfield county and others. On motion to quash. Granted.

C. W. Darrow, Edward T. Taylor, Charles W. Taylor and Becksler, McLean & Bennett, for petitioner.

John L Noonan and J. W. Dollison, for respondents.

CAMPBELL J.

At the trial of a criminal action in the district court of Garfield county the defendant was acquitted, and the jury by their verdict declared that the prosecution was maliciously commenced. As required by section 696, Mills' Ann. St., the court thereupon gave judgment against the prosecuting witness for the costs arising in the case. Thereafter, and during the term, the person designated in the judgment as the prosecuting witness appeared and asked for a stay of proceedings, and that judgment be set aside upon the ground that she was not in fact the prosecuting witness in the cause, and had nothing whatever to do with its prosecution. The court denied the motion and allowed the judgment to stand. Feeling aggrieved thereby, the alleged prosecuting witness filed in this court her petition for a writ of certiorari to review that judgment, and the writ was ordered to be issued. It seems that a return thereto was made, which is not now among the files; but counsel have stipulated that, inasmuch as the record below is properly set forth in the petition, such statements therein may be considered as the return of the respondents, and regarded as containing the full record of the cause. Respondents move to quash the writ.

1. Whether by stipulation an authenticated copy of the record proper may be dispensed with, we need not determine. By repeated decisions of this court, however, the rule is settled that the parties may not by stipulation inject into a record matters not part of the record proper, and thus supply the place of a bill of exceptions duly authenticated and certified. McKenzie v. Ballard, 14 Colo. 426, 24 P. 1. In so far, therefore, as concerns matters in this petition which are not part of the record proper, but become such only by being incorporated into a bill of exceptions, they must be disregarded, for no bill of exceptions has been preserved. From what the parties designate as the record, it is clear that the writ was inadvertently issued, and should be quashed. The Supreme Court, except as otherwise provided by the Constitution, is a court of appellate jurisdiction only. By section 3 of article 6 of that instrument it has power however, to issue writs of certiorari and other writs therein enumerated. Our decisions are nuiform to the effect that the writs there mentioned are the common-law writs, and that it is beyond the power of the General Assembly to abridge or enlarge the same. At the common law the writ of certiorari was not a writ of right, but the granting or refusal thereof rested in the sound discretion of the court. Originally, also, the revisory court, in its review of the case brought up on certiorari, was limited to the question alone of the jurisdiction of the inferior court or tribunal. It may be true that in this country this restriction has, by statute or judicial decision, been somewhat removed, but this court has uniformly observed such limitation. Wood on Mandamus, etc., 174, 175; Harris on Certiorari, §§ 1, 3, 84. For collection of cases, see 6 Cyc. Law & Procedure, 759, 819, 826; 4 Enc. Pl. & Pr. 90, 100, 254. In original applications in this court for writs of prohibition this rule has been repeatedly announced. And in People v. District Court, 30 Colo. 488, 490, 71 P. 388, it was expressly said that the chapter of the Code relating to certiorari has no application to proceedings of that character in the Supreme Court, and that we cannot stay the hands of an inferior tribunal because of an alleged abuse of discretion in a matter of which it has jurisdiction. Chapter 28 of the Code, therefore,...