Needle Rock Ditch Co. v. Crawford-Clipper Ditch Co.
| Decision Date | 01 February 1904 |
| Citation | 75 P. 424,32 Colo. 209 |
| Parties | NEEDLE ROCK DITCH CO. et al. v. CRAWFORD-CLIPPER DITCH CO. CO. |
| Court | Colorado Supreme Court |
Appeal from District Court, Delta County; Theron Stevens, Judge.
Controversy between the Needle Rock Ditch Company and others and the Crawford-Clipper Ditch Company. Motion to vacate order dismissing the appeal denied.
Milton R. Welch, George Stephan, and R. M. Logan, for appellants.
A. R King and C. H. Stewart, for appellee.
Motion to vacate order dismissing the appeal, and to reinstate the same. The decree appealed from was rendered under the irrigation statutes affecting water rights. Section 2427 Mills' Ann. St., contains directions for appealing from such a decree, and, among other things, enjoins upon the district court or judge the duty of making an order allowing the appeal, and fixing the amount of the appeal bond. Section 2428 requires this order to be entered of record, a certified copy of which the appellant must serve upon the appellee, and cause the same to be published in a newspaper. By section 2432 appellant must file with the clerk of the Supreme Court, within 60 days after the making of the order of appeal, proof of the service and publication thereof; and, if such proof is not filed, the Supreme Court shall, on motion of appellee, at any time after such default in filing the proof, and before the same shall be filed dismiss the appeal. Section 2429 requires appellant to file a transcript of record of the district court with the clerk of the Supreme Court at any time within 6 months after the appeal is allowed; and section 2432 says that, if such transcript is not filed within that time, such appeal shall on motion, be dismissed.
These provisions with reference to the filing of transcript and proof of service and publication are mandatory. They are plain and explicit, and interpret themselves. They are jurisdictional requirements. If the proof of service is not filed within the time, and a motion of the appellee to dismiss for such default is made before such proof is filed, the appeal must be dismissed. So, also, if the transcript of record is not filed within the time limited by the act, the appeal must be dismissed upon motion, and there is no discretion in the Supreme Court in the matter.
There was a failure in this case upon the part of the appellants in both particulars. The transcript was not filed within the time limited...
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