Swenson v. Girard Fire & Marine Ins. Co.

• Decision Date: 01 December 1878
• Parties: SWENSON v. GIRARD F. AND M. INS. CO.
• Court: Colorado Supreme Court

4 Colo. 475

SWENSON v. GIRARD F. AND M. INS. CO.

Supreme Court of Colorado

December, 1878

Appeal from District Court of Arapahoe County.

This action was originally commenced in the county court of Arapahoe county by Swenson, for the use of Walker, against the Girard Fire and Marine Insurance Co., the appellant. In that court the plaintiff obtained a verdict in the sum of $853.28, and judgment was thereafter entered in that amount and costs, in favor of the plaintiff. The defendant prayed an appeal to the district court of Arapahoe county. The bond on appeal was filed in the county court and approved within the time fixed. At the January term, 1878, of the district court, the appellee filed his motion in the district court to dismiss the appeal; the principal grounds of this motion are stated in the opinion. At the same term and two days after the filing of the motion to dismiss, the appellant filed in the district court a transcript of the orders of court made in the cause in the county court accompanied by certain files purporting to be the original files of the case in the county court, but not attached to the transcript, nor in any way identified as the said original files. On the 1st of March thereafter the appellant filed the affidavit of W. S. Decker, stating that on the 10th of January, 1878, he requested the acting clerk of the county court to send up the papers of the case and a transcript of the proceedings to the district court, and that he supposed it had been done. On the same day the appellee filed the affidavit of the said clerk of the county court, which in terms denies the statement of Mr. Decker, and affirms that since the day of the filing of the said appeal bond, the appellant had done nothing whatever toward perfecting his said appeal.

On the 26th of March following, at the special term of the said district court, the motion of the said appellee was sustained, the appeal dismissed and the cause stricken from the docket.

From the entry of this final order of the district court, the appellant has taken this appeal.

Messrs SYMES & DECKER, for appellant.

Messrs CHARLES & DILLON, for appellee.

STONE J.

This case is brought up on appeal from an order of the district court dismissing an appeal to that court from the county court. The grounds of the motion for dismissal in the court below are, that first, no bill of exceptions was filed by the appellant in the county court, and that the district court could not pass upon the appeal without such bill of exceptions; second, that the district court had no jurisdiction of said appeal for the reason that said court has not been sufficiently clothed by law with appellate jurisdiction to enable it to entertain and determine appeals from county courts; third, that appellant did not prosecute such appeal with due diligence. The record not showing otherwise, we must presume that the district court based its judgment on one or more of these grounds.

In an appeal from the county court to the district court is a bill of exceptions necessary?

Appeals from county to district courts are provided for by sections 575, 576, 577 of the General Laws, p. 254. So much of section 576 as is pertinent to this question is as follows: 'In all appeals provided for in the foregoing sections the proceedings in the appellate court shall be in all respects de novo. Said appellate court shall consider and pass upon all objections to the pleadings and proceedings in said cause which may have been made in the county court, and make such orders and render such judgment or decree as shall be meet and proper-in the same manner as though such cause had been originally begun in said district court-and the defendant, where judgment has been rendered by default, shall have a right to plead any and all defenses which he might have pleaded had the cause been originally brought in the district court. All such causes shall be conducted in the same manner as if originally brought in the district court, etc.'

This statute differs somewhat from our former statute relating to appeals from probate courts to district courts in that, inter alia, it contains the added words 'said appellate court shall consider and pass upon all objections to the pleadings and proceedings in the said cause which may have been made in the county court,' and it is insisted by counsel for appellee that to enable the district court to carry out this provision a bill of exceptions is necessary. We cannot think this was contemplated by the statute. The precise meaning of this language is perhaps somewhat obscure, but taken in connection with the entire section is not, we think, beyond reasonable interpretation.

The prominent feature of such appeals is that the trial in the appellate court shall be de novo. To effect this no bill of exceptions can be necessary or contemplated. And while it cannot be supposed that such appellate court is to proceed as a court of review merely, yet the language in question seems fairly to imply that certain questions raised in the county court may be passed upon when necessary by the district court. Treating upon the subject of appeals, Mr. Hilliard, in his work on New Trials, page 701 (second edition), remarks that the term 'appeal' is in the several States used in very different senses, and has to a great extent, in statutes and decisions, lost its distinctive meaning, having become the generic term for all forms of rehearing or else nearly or quite synonymous with error or new trial. The obvious intent of our statute is that the proceeding on appeal shall be a new trial upon the issues made in the county court, but that when an objection has been made in the county court to any of the...