McKenzie v. Murphy

• Decision Date: 07 April 1902
• Citation: 29 Colo. 485,68 P. 838
• Parties: McKENZIE v. MURPHY et al.
• Court: Colorado Supreme Court

68 P. 838

29 Colo. 485

McKENZIE v. MURPHY et al.

Supreme Court of Colorado

April 7, 1902

Appeal from district court, El Paso county.

Action by Kenneth McKenzie against E. R. Murphy and another. From a judgment against McKenzie, he appeals. On motion to dismiss. Denied.

A. F. Woodruff and Robert Kerr, for appellant.

W. S Morris, for appellees.

PER CURIAM.

On the date that judgment was rendered in the court below, appellant prayed an appeal to this court, and was granted time within which to file his appeal bond and tender bill of exceptions. Subsequently he obtained orders extending this time. His bond was filed and bill of exceptions tendered within the time thus fixed. Appellees now move to dismiss the appeal because it is said, the later orders were obtained ex parte. For the purpose of showing such orders were ex parte, an affidavit so stating is filed. The motion to dismiss because the bill of exceptions was not tendered in time is not well taken. If for any reason the bill of exceptions is defective or cannot be considered, a motion to strike might be entertained, but appellant would still be entitled to have his appeal heard upon matters disclosed by the record proper. It appears from the record, as certified, that the orders extending time for filing bond and tendering bill were granted on the application of appellant. Whether or not notice of the application for such orders was given appellees does not affirmatively appear. Every intendment is in favor of the regularity of the proceedings of a court of record, and we must presume that appellees had due notice of these applications, if such notice is required when the record does not disclose anything to the contrary. We cannot consider affidavits the purpose of which is to add to or detract from the record certified to us by the clerk of the trial court.

The motion to dismiss is denied, with leave to appellees to apply to the court below to amend the record so as to show, if such is the fact, that the orders extending the time within which to file the appeal bond and tender the bill of exceptions were obtained ex parte. The trial court should entertain and determine such motion upon due notice to appellant notwithstanding the case has been removed to this court on appeal. Upon the determination of such motion, and the record then made being properly preserved and authenticated, the motion to dismiss may be renewed, or such other...