Schofield v. Felt

• Decision Date: 15 June 1887
• Citation: 14 P. 128,10 Colo. 146
• Parties: SCHOFIELD v. FELT.
• Court: Colorado Supreme Court

14 P. 128

10 Colo. 146

SCHOFIELD v. FELT.

Supreme Court of Colorado

June 15, 1887

Error to county court, Arapahoe county.

On motion to dismiss an appeal from justice's court.

On the fifteenth day of November, 1883, judgment for $80 was rendered in a case pending before GEORGE L. SOPRIS, justice of the peace in Arapahoe county, against said Schofield, the defendant therein, and in favor of said Felt, the plaintiff therein. On the twenty-third day of November, 1883, the said Schofield filed with said justice his bond for appeal of said case to the county court, and accordingly prayed appeal thereon. The said bond was then duly approved by the justice. On the third day of December, 1883, the said Schofield paid the said justice two dollars, the cost of granting the appeal, and the said justice then certified the case to the county court, and a transcript of the justice's record was thereafter filed in the county court. On the twenty-second day of December, 1883, the said Felt filed in the county court his motion to dismiss the appeal, for the following reasons: '(1) Because said Schofield did not pay, or cause to be paid, the cost of granting the said appeal from the said justice within 10 days from the rendering of the judgment; (2) because said Schofield has not filed any appeal-bond at all in said case in the county court; (3) because said Schofield did not perfect his appeal in said case within 10 days from the rendering of judgment (4) because said Schofield did not procure, or cause to be procured, the granting of said appeal within 10 days from the rendering of the judgment. On the twenty-fourth day of January, 1884, the said motion was submitted upon the record in the case, and was sustained by the court, and the appeal thereupon dismissed. Exceptions were duly reserved, and the case comes here on error, and the one error assigned is that the court erred in sustaining said motion and dismissing said appeal.

P. L. Hubbard, for Schofield, plaintiff in error.

C H. Burton, for Felt, defendant in error.

STALLCUP C.

Two questions are presented for consideration. The first is as to the sufficiency of the bond for appeal to the county court. The record shows that the appeal-bond was executed as follows: 'LOTT SCHOFIELD, by P. L. HUBBARD, his duly-appointed Agent for the Purpose of executing this Bond. A. L. SCHOFIELD, Surety.' It is ruged by counsel for defendant in error that the bond was insufficient, in that it was not executed by the principal in person. To warrant such execution of the bond, authority therefor of equal rank with the bond was necessary, and should have accompanied the bond and when the authority of the agent to execute the bond was challenged, as it was by the motion to dismiss the...