Slattery v. Robinson

• Decision Date: 14 October 1895
• Citation: 7 Colo.App. 22,42 P. 179
• Parties: SLATTERY v. ROBINSON.
• Court: Colorado Court of Appeals

42 P. 179

7 Colo.App. 22

SLATTERY v. ROBINSON.

Court of Appeals of Colorado

October 14, 1895

Appeal from district court, Arapahoe county.

Action by Alexander D. Robinson against G.B. Slattery and another. There was a judgment for plaintiff, and defendant Slattery appeals. Dismissed.

Talbot & Denison (George C. Norris, of counsel), for appellant.

Benedict & Phelps, for appellee.

BISSELL J.

This was an action on a money demand brought against Slattery and another in the county court in 1893. One of the defendants made default, and judgment was accordingly entered, but the case was defended by Slattery. Various proceedings were had in the case until the 16th of August, when it was tried, and a judgment rendered against Slattery for $744.20. A motion for a new trial was subsequently filed, and, taking the usual course, was ultimately argued and determined on the 29th of August. Nothing whatever appears to have been done prior to this time with reference to the prosecution of an appeal from the judgment against Slattery. When the motion for a new trial was overruled, an appeal was prayed to the district court and allowed, a bond was filed, and the papers subsequently reached that court. There a motion was made to dismiss the appeal, on several grounds, but the principal one, and that with which we are concerned, was based on the statute, which fixes the time within which an appeal must be taken. In the district court the motion to dismiss the appeal was heard on the 18th of December, and allowed. In the order, five days' time was given the appellant, Slattery, in which to elect what he would do. Just what this order meant, its scope or purpose, cannot be gathered from the record. It would appear, however, that Slattery afterwards filed a motion to rehear the motion to dismiss the appeal, which had been disposed of on the 30th of December. This motion was heard, and taken under advisement. After the term had elapsed, and on the 22d of January of the ensuing year, the motion to rehear the motion to dismiss the appeal was denied, and from this order or judgment Slattery prayed an appeal to this court. An application was made here to dismiss the appeal. It was not determined in limine, but the matter is presented for our consideration on final argument.

We do not find it necessary to dispose of some of the questions which are argued on this hearing. Slattery never acquired the right to have his case determined, either in the district court, or heard on appeal here, because he failed to take the statutory steps to preserve whatever rights he may have had. It has long been settled in this jurisdiction that the service of a notice according to the statutory requirements is an indispensable prerequisite to the perfection...