Sitler v. Brians, 16938

• Decision Date: 06 October 1952
• Docket Number: No. 16938,16938
• Citation: 126 Colo. 370,251 P.2d 319
• Parties: SITLER v. BRIANS.
• Court: Colorado Supreme Court

Page 319

251 P.2d 319

126 Colo. 370

SITLER v. BRIANS.

No. 16938.

Supreme Court of Colorado, in Department.

Oct. 6, 1952.

John T. Dugan, Denver, for plaintiff in error.

Joseph W. Esch, Englewood, for defendant in error.

STONE, Justice.

This was an action to contest the election of secretary of the Petersburg School District, No. 23, Sheridan, Colorado, held on May 5, 1952. Case was heard by the county court on May 27, and docketed in this court on September 3.

Our school statute, sec. 80, chap. 146, '35 C.S.A., provides that in the adjustment of contests for such office 'the rules of practice and procedure in contested elections for the office of sheriff shall apply, as far as applicable.' Our election statute provides as to contest of a county office that 'An appeal from the judgment and final determination in any cause may be taken to the supreme Court, the same as in other causes tried in said court; provided, that such appeal be prayed for, bill of exceptions settled, bond for costs executed and filed, and the record transmitted to the clerk of the supreme court within twenty days from the date of entering such judgment.' Sec. 289, chap. 59, '35 C.S.A., S.L. 1885, p. 198, sec. 17.

Motion to dismiss writ of error is grounded on the fact that the case was not docketed in the supreme court within twenty days from the date of judgment.

By sec. 6, chap. 6, S.L. 1911, 'All statutes granting and regulating appeals from District, County and Juvenile Courts to the Supreme Court, in all actions, suits and proceedings, both civil and criminal, are hereby repealed. Writs of error shall lie from the Supreme Court to every final judgment, decree or order of any County Court, District Court or Juvenile Court, in all actions, suits and proceedings, (whether or not such action, suit or proceeding is governed by the Code of Civil Procedure or was commenced under the provisions of the general statutes of this state) * * *.'

In Hewitt v. Landis, 75 Colo. 277, 225 P. 842, which was an acton under the forcible entry and detainer statute, it was held that the 1911 statute above quoted does not say 'special proceedings,' but 'proceedings'; that there has always existed a recognized distinction between them, and the general assembly did not intend to abolish appeals in special proceedings provided by separate statutes, but meant only in such proceedings as are provided for and included in our code. Under that interpretation of the statute it would appear that the twenty-day limitation of sec. 289 was not repealed by the 1911 statute.

By sec. 1, chap. 117, S.L. 1941, 'Writs of error to any inferior tribunal shall be the only method for review by the supreme...