Robertson v. O'Riley

• Decision Date: 13 June 1890
• Citation: 24 P. 560,14 Colo. 441
• Parties: ROBERTSON v. O'RILEY et al.
• Court: Colorado Supreme Court

24 P. 560

14 Colo. 441

ROBERTSON v. O'RILEY et al.

Supreme Court of Colorado

June 13, 1890

Commissioners' decision. Error to district court, Pitkin county.

Edward T. Taylor, Porter Plumb, and J. W Taylor, for plaintiff in error.

Downing & Franklin, for defendants in error.

RICHMOND C.

This was an action originally commenced in the county court of Pitkin county by O'Riley and Babcock plaintiffs below and judgment obtained therein against Robertson, defendant below, for the sum of $792. Some time thereafter, defendant perfected an appeal to the district court. On the 19th of July, 1886, plaintiffs filed a motion in the district court to affirm the judgment of the county court, which motion was granted. Thereupon defendant prosecuted this writ of error. The record in this case shows that the appeal had been taken from the county court to the district court, transcript of record filed, and, at a regular term succeeding the appeal, plaintiffs and defendant appeared by their attorneys, and that at the February term, 1886, of the district court, at the request of J. M. Downing, attorney for plaintiffs, the cause was regularly set for trial, and thereafter, during that term, the defendant filed a motion for a continuance thereof until the next term of court; that said motion was during said term regularly heard by the court, and on the hearing thereof the defendant appeared by Plumb & Moore, his attorneys, and the plaintiffs appeared by Downing & Franklin, their attorneys; that said motion of continuance was allowed until July term, A. D. 1886; that on the 13th day of July, 1886, being one of the regular term days of said July term, said action was again regularly set for trial; and that thereafter plaintiffs submitted their motion to affirm said judgment because the appellants had failed to serve upon the appellees or their attorneys a notice of the appeal having been taken, as provided by section 4 of an act relating to appeals from county courts to district courts. Sess. Laws 1885, p. 159.

There are but two assignments of error: First, the court erred in sustaining the motion of the plaintiffs, filed July 19, 1886, to affirm the judgment of the county court in this action; second, the court erred in rendering judgment for said plaintiffs without first giving the defendant an opportunity to try the issue joined in said action by a regular trial in said district court. Both errors can be considered together.

The section of the Session Laws referred to reads as follows: 'If the appeal be not taken on the same day on which the judgment is rendered, the appellant shall serve the appellee, or his attorney of record, within five days after the appeal is taken, with a notice, in writing, stating that an appeal has been taken from the judgment therein specified, which notice shall be served by delivering a copy thereof to such appellee, or his attorney of record. If the appellant fail to give notice of his appeal when such notice is required, the appellee may, at any time before such notice is actually served, and after the time when it should have been served, have the judgment of the county court affirmed or the appeal dismissed, at his option.' The language of this section is simple, and easily understood. Under it the unsuccessful party in the county court has a right of appeal, which may be taken on the same day on which judgment is rendered, or may be taken at some subsequent period of time. But, when taken on any day other than the day on which the judgment is rendered, it is incumbent upon him to serve the appellee or his attorney of record, within five days after the appeal is taken, with a notice, in writing, stating that an appeal has...