Polk v. Butterfield

• Court: Colorado Supreme Court
• Writing for the Court: ELBERT, J.
• Citation: Polk v. Butterfield, 9 Colo. 325, 12 P. 216 (Colo. 1886)
• Decision Date: 12 November 1886
• Parties: POLK v. BUTTERFIELD.

12 P. 216

9 Colo. 325

POLK v. BUTTERFIELD.

Supreme Court of Colorado

November 12, 1886

Error to district court, Arapahoe county.

This was an action brought by the defendant in error against the plaintiff in error and others on certain bills of exchange. The defendant below pleaded the statute of limitations, and the plaintiff replied a new promise. Trial by the court, and judgment against the defendant in the sum of $1,480. Afterwards, and at the same term, the defendant, Polk interposed a motion, supported by affidavits, to vacate the judgment under the provisions of section 78 of the Amended Code, p. 23. The section, so far as applicable to the case at bar, is as follows: 'The court may, on motion, in furtherance of justice, * * * upon such terms as may be just and upon payment of costs, relieve a party or his legal representatives from a judgment, order, or other proceeding taken against him through mistake, inadvertence, surprise, or excusable neglect.' The motion to vacate the judgment was overruled, and the defendant sued out a writ of error.

Stallcup, Leethe & Shaffroth, for plaintiff in error, Polk.

Owen McGarr, for defendant in error, Butterfield.

ELBERT J.

The decision of the district court overruling the motion of the plaintiff in error to vacate the judgment in the court below cannot be reviewed on this writ. At common law no writ of error could be brought but on a judgment, or an award in the nature of a judgment. 2 Tidd, Pr. *1141. The whole proceedings to final judgment, inclusive, were entered of record, and the writ went to errors of fact and law appearing in the proceedings as recorded. Steph. Pl. 142. The review was of the record upon which judgment was given. 2 Tidd, *1134. It appears, also, that the writ would lie to the 'execution of a suit' where error was 'supposed to be, as well in giving the judgment as in awarding execution thereon;' but in such case the writ ran, ' tam in redditione judicii quam in adjudicatione executionis.' 2 Tidd, Pr. *1134, *1143. Practically, the writ brought up the entire record. The motion to vacate the judgment in this case is statutory, and based on statutory grounds. It was unknown to the common law, and the writ of error had no use respecting it. The act of February 24, 1879, provided for 'appeals from,' and 'writs of error to,' the final judgments and decrees of the district and county courts. Sess. Laws 1879, 226, 227. This is the writ of error as known to the common law. The view that, under our practice, it brings up the entire record, and that error can be assigned on an order after judgment, is not admissible. The fact that the act of 1879 repealed the provisions of the Code of 1877 respecting appeals to this court, which provided, inter alia, for an appeal 'from any special order after judgment,' makes it difficult to say that the legislature intended, by appeals from final judgments and by writs of error to final judgments, to still provide for the review...