Long v. Sullivan

• Decision Date: 20 April 1895
• Citation: 21 Colo. 109,40 P. 359
• Parties: LONG v. SULLIVAN.
• Court: Colorado Supreme Court

40 P. 359

21 Colo. 109

LONG v. SULLIVAN.

Supreme Court of Colorado

April 20, 1895

Appeal from district court, Arapahoe county.

Action by James W. Sullivan against Robert Long as surety on an attachment bond. From a judgment for plaintiff, defendant appeals. Affirmed.

The cause was heard in the district court upon the amended complaint and answer and motion for a judgment upon the pleadings. This motion was sustained, and judgment rendered in favor of appellant. The defendant brings the case here upon appeal.

The pleadings are as follows: 'The plaintiff complains of the defendant, and alleges: (1) That on, to-wit, the 20th day of October, A. D. 1891, at a term of the district court then being holden within the for the Second judicial district in the county of Arapahoe, and state of Colorado, a judgment was rendered in favor of the above-named plaintiff against one W E. Myers and others for the sum of seventeen hundred and seven dollars and fifty cents ($1,707.50), and seventy-five dollars ($75.00) attorneys' fees and costs of suit, and that on the 19th day of December, A. D. 1891, the said W. E Myers appealed from said judgment to the court of appeals of said state. (2) That upon said appeal the said defendant made and filed with the clerk of the said district court, for the use of the plaintiff, his written undertaking, of which the following is a copy, to wit: 'Know all men by these presents that we, W. E. Myers and R. A. Long, of the county of Arapahoe, and state of Colorado, are held and firmly bound unto J. W. Sullivan in the penal sum of three thousand dollars, for the payment of which, well and truly to be made we, and each of us, bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated at Denver Dolorado, this 14th day of December, in the year of our Lord one thousand eight hundred and ninety-one. The condition of the above obligation is such that whereas, the said J. W. Sullivan did, on the 20th day of October, one thousand eight hundred and ninety-one, at a term of the district court then being holden within and for the Second judicial district in the county of Arapahoe, and state of Colorado, obtain a judgment against the above-bounden W. E. Myers et al. for the sum of seventeen hundred and seven 50/100 dollars, and seventy-five dollars attorneys' fees and costs of suit, from which judgment the said W. E. Myers has prayed for and obtained an appeal to the court of appeals of said state of Colorado: Now, if the said W. E. Myers et al. shall duly prosecute said appeal, and shall, moreover, pay the amount of the said judgment, costs, interests, and damages rendered and to be rendered against the said W. E. Myers et al. in case the said judgment shall be affirmed in the said court of appeals, then the above obligation to be null and void; otherwise to remain in full force and effect. [Signed] W. E. Myers. [Seal.] R. A. Long. [Seal.]' (3) That the said W. E. Myers has failed to prosecute said appeal, and has failed to pay the amount of said judgment, costs, interest, and damages, and on, to wit, the 28th day of January, A. D. 1892, proceedings were had in the said court of appeals by which said appeal was dismissed, and a remittitur was issued to the district court of Arapahoe county, and that said judgment is still due and unpaid, to the damage of the plaintiff in the sum of three thousand dollars ($3,000.00). Wherefore the plaintiff demands judgment against the said defendant in the sum of three thousand dollars ($3,000.00) for the costs of this action, and for such other and further relief as to the court shall seem proper.'

The defendant, for answer to the amended complaint herein, 'denies that the said Myers failed to prosecute said appeal mentioned in said complaint; but defendant avers that said appeal was duly prosecuted, and that there was no judgment rendered or to be rendered against the said Myers in the said court of appeals, and that the said judgment theretofore rendered by the district court was not affirmed by the court of appeals. The costs of the court of appeals have all been paid by the said defendant. Wherefore defendant asks that said suit be dismissed at the cost of the said plaintiff.'

J. P. Brockway and Robert Given, for appellant.

O'Donnell & Decker, for appellee.

HAYT, C.J., (after stating the facts).

The condition of the bond is that the appeal shall be duly prosecuted, and the amount of the judgment of the district court paid, with costs, in case such judgment shall be affirmed. It is alleged in the complaint that the appeal was dismissed from the court of appeals, and a remittitur issued by that court to the district court. Section 397 of the Code provides: 'The dismissal of an appeal may, by order of the court, be made without prejudice to another appeal or writ or error; but unless another appeal or supersedeas be taken or allowed within thirty days after such dismissal, the dismissal of an appeal or writ of error shall operate as an affirmance of the judgment of the trial court.' The complaint, which was not filed until April 11, 1892, alleges that the appeal was dismissed by the court of appeals on the 28th day of January, 1892. It is thus shown that more than 30 days had elapsed after the dismissal of the appeal before the bringing of the present suit, and hence, by the very terms of the statute, the dismissal amounted to an affirmance of the judgment of the district court, and the liability of appellant upon his bond attached, unless it appears that another appeal or supersedeas was taken or allowed within 30 days after such dismissal. It was not necessary to allege in the complaint that no appeal had been taken within the 30 days, as this was a matter of defense which should have been pleaded by the defendant. Whether...