Molandin v. Colorado Cent. R. Co.

• Decision Date: 01 April 1877
• Citation: 3 Colo. 173
• Parties: MOLANDIN v. COLORADO CENTRAL RAILROAD COMPANY.
• Court: Colorado Supreme Court

3 Colo. 173

MOLANDIN v. COLORADO CENTRAL RAILROAD COMPANY.

Supreme Court of Colorado

April, 1877

Error to District Court of Arapahoe County.

THE material portions of the stipulation upon which this cause was brought to this court are as follows:

'It is hereby stipulated and agreed by and between Miller &amp Markham, attorneys for the plaintiff, and Henry M. Teller attorney for the defendant in the above case, that the following facts were proved or admitted on the trial of this case by the jury, before the Honorable Andrew W. Brazee judge of the first judicial district, at the September term A. D. 1875, of said court, and that the following proceedings were had.' After stating the facts agreed upon, the stipulation concludes: 'Thereupon the plaintiff rested his case; and the defendant moved the court for a nonsuit, and the same was granted. To which the plaintiff then and there objected, and excepted to the court granting the same, and the objection and exception is made a part of the record; and it is hereby agreed that this stipulation shall be taken and considered as a bill of exceptions and record in this case, and that the same go up to the supreme court of Colorado Territory, and be decided and otherwise acted on by said court, the same in all respects as if taken up on writ of error.

'MILLER & MARKHAM,

'Attorneys for Plaintiff.

'This stipulation not to be used in any subsequent trial, if there should be one.

H. M. TELLER,

'Attorney for Defendant.' Rule 28, referred to in the opinion, is as follows: 'No judgment will be pronounced in any agreed case unless an affidavit of some credible person shall be filed, setting forth that the matters presented by the record were litigated in good faith, about a matter in actual controversy between the parties, and that the opinion of this court is not sought with any other design than to adjudicate and settle the law relative to the matter in controversy between the parties to the record.'

Messrs. MILLER & MARKHAM, for plaintiff in error.

Mr. H. M. TELLER, for defendant in error.

THATCHER C. J.

This is essentially an appellate tribunal. Causes can only be heard in this court when properly removed from the lower courts by appeal or writ of error. Unless the statute prescribing the mode of bringing cases into this court from the lower courts be complied with, we are without authority to assume jurisdiction. Until the court has acquired jurisdiction of a cause under the law the agreement of parties to the action relative to its status and disposition in this court, can have no force of effect whatever. The case before us is somewhat anomalous; neither a writ of error, nor a scire facias to hear errors, has ever been issued. A transcript of the record has never been filed in this court. By no method recognized by the law are we apprised that this case was ever pending in the court below. It is styled 'an agreed case.' Technically it is not what is understood by an agreed case, nor is it so treated by counsel. If it were an agreed case no judgment could be pronounced before the filing of the affidavit required by the twenty-eighth rule of this court. When the court once acquires jurisdiction of the subject-matter, the defendant by a voluntary appearance may dispense with the service of the scire facias as he may waive any other personal privilege. So far, however, as relates to the writ of error, it may well be questioned whether without its issuance, this court has jurisdiction of the subject-matter.

The supreme court of the United States has uniformly held that the issuance of a writ of error is essential to the exercise of its appellate jurisdiction. Washington County v Durant, 7 Wall. 694; Hodges et al. v. Williams, 22 How. 87. In the case last cited the court held that the writ of error is not a mere matter of...