Rose v. Agr. Ditch & Reservoir Co.

• Decision Date: 08 November 1920
• Docket Number: 9886.
• Parties: ROSE v. AGRICULTURAL DITCH & RESERVOIR CO.
• Court: Colorado Supreme Court

193 P. 671

69 Colo. 232

ROSE v. AGRICULTURAL DITCH & RESERVOIR CO.

No. 9886.

Supreme Court of Colorado

November 8, 1920

Department 2.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Action between H. A. Rose and the Agricultural Ditch & Reservoir Company. From a judgment therein, the former brings error. On motion to strike the bill of exceptions.

Motion denied.

Melville Melville & Walton, of Denver, for plaintiff in error.

Dubbs &amp Vidal and Garwood & Garwood, all of Denver, for defendant in error.

DENISON J.

Defendant in error moves to strike the bill of exceptions because not allowed in time. The court below, within the 60 days mentioned in S. L. 1911, pp. 9, 10, § 1, granted time beyond the term for presenting the bill of exceptions for allowance. Further time was afterwards repeatedly granted, the last several times by consent of the attorney for defendant in error.

In Re Luthe's Estate, 182 P. 885, we held that the court could not, after the expiration of the 60-day limit, grant any further extension. In that case, however, the last extension was granted without the consent of the defendant in error.

The question now presented is whether, with only such consent, the time can be extended. We have no doubt that it can. The argument against this conclusion is not without force, i. e., that the court has no jurisdiction, after the term, to extend, except by and according to the terms of the statute and that consent cannot confer jurisdiction. The flaw in this argument may be in the use of the word 'jurisdiction.' There is much doubt whether the objection in question goes to the jurisdiction. See Greig v. Clement, 20 Colo. 167, 173, 37 P. 960. But, letting that pass, the question is forestalled in this state. Murphy v. Cunningham, 1 Colo. 467; Rhoades v. Drummond, 3 Colo. 374; City of Central v. Wilcoxen, 3 Colo. 566, 570; Learned v. Tritch, 6 Colo. 579, 580; Greig v. Clement, 20 Colo. 167, 37 P. 960; Ritchey v. People, 23 Colo. 314, 47 P. 272, 384; Robinson v. D. & R. G. Co., 24 Colo. 98, 49 P. 37; Mackey v. Monahan, 13 Colo.App. 144, 148, 56 P. 680; County Comrs. v. Tulley, 17 Colo.App. 113, 114, 67 P. 346; Merriner v. Jeppson, 19 Colo.App. 218, 219, 74 P. 341; Pagosa Springs v. People, 23 Colo.App. 479, 481, 130 P. 618.

Defendant in error urges that the consent must be given within the time in which the court might legally make the order. What difference could that make? If the power depends on consent, what difference can it make when the consent be given?

Murphy v. Cunningham goes further than is here necessary. In the absence of both order and stipulation it implies both from conduct of defendant in error in this court.

In several of the cases above cited the question turned on an order or consent or laches which took place after the time for allowance had passed.

In Robinson v. D. & R. G., 24 Colo. 98, 49 P. 37, the court holds that laches waives the objection that the order is entered too late. If laches can do that, a fortiori can consent do so. So of Central v. Wilcoxen, 3 Colo. 566, 570; Learned v. Tritch, 6 Colo. 579, 580; Mackey v. Monahan, 13 Colo.App. 144, 146, 56 P. 680; County Com'rs v. Tulley 17 Colo.App. 113, 114, 67 P. 346; Merriner v. Jeppson, 19...