Swingle v. Pollo's Estate
| Decision Date | 13 March 1961 |
| Docket Number | No. 19055,19055 |
| Citation | 360 P.2d 808 |
| Parties | Bobbolene SWINGLE, Plaintiff in Error, v. ESTATE of George POLLO, Deceased, and Estate of Anna Pollo, Deceased, Defendants in Error. |
| Court | Colorado Supreme Court |
Chisholm, Howard & Daane, Denver, for plaintiff in error.
Nicholas Magill, Steamboat Springs, for defendant in error, Estate of Anna, Pollo, deceased.
The question in this case is the propriety of the dismissal of an appeal from the county court of Routt County to the district court for that county. The dismissal was on the grounds that the appeal bond was not timely filed and that it was insufficient in amount.
The matter in issue is a claim against the estate of George Pollo who died on May 3, 1957. The chief beneficiaries under his will were his mother, Anna Pollo, who died subsequently, and Bobbolene Swingle, the plaintiff in error here. The estate of Anna Pollo filed three claims against the estate of George Pollo which were allowed by the county court in the amount of approximately $16,560, one on August 18, 1958 and two on August 19, 1958. Bobbolene Swingle, hereinafter referred to as appellant, appearing as a legatee under the will, sought to appeal the order allowing said claims.
On August 26, 1958 counsel for appellant filed their appearance in the district court. On August 30, 1958 an appeal bond bearing the notation 'Filed in the County Court Routt County Colorado August 30, 1958 s/ Gay Root, Clerk' was approved by the county judge. It is conceded by all parties concerned that the appeal bond was mailed special delivery from Denver on August 26, 1958. The estate of Anna Pollo, subsequently referred to as claimant, moved on November 29, 1958 to dismiss the appeal. The district court ruled on December 17, 1958 that the appeal should not be dismissed on account of what appeared to be a delay in filing and also granted appellant additional time within which to make certain corrections in the form of the bond. A substitute bond was filed on December 29, 1958 and approved on December 31, 1958. Claimant then sought to set aside the order of the district court, and argument on this motion having been held, the court concluded that as a legatee the appellant had no standing to prosecute an appeal; that the substituted bonds were insufficient in amount, and that the original bond had not been timely filed. Appellant seeks review of the dismissal of her appeal.
In its original ruling on the motion to dismiss the appeal the district court noted that the bond was mailed from Denver special delivery on August 26 and that in the ordinary course of mail would have been received by the clerk of the county court on August 27, within the ten days from the first county judgment on August 18. It then went on to state:
'However the Court is of the belief and finds that the bond was so mailed by counsel on the 26th, whatever the occasion for the delayed file mark and further of the belief that the appeal should not be dismissed on account of the delayed filing.'
On a motion to set aside its first ruling (which denied the motion to dismiss and ordered appellants to file a new bond in proper form) the court reversed itself and ordered the appeal dismissed, one of the grounds for this ruling being that the appeal was not timely commenced. The court relied on Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077, and stated:
* * *'
The court pointed out that various means were open to plaintiff in error to insure that the bond would reach Steamboat Springs, the county seat of Routt county, by August 28.
The following are the issues presented for decision:
1. Did the trial court err in holding that the appeal had not been perfected within the time prescribed by C.R.S. '53, 37-6-11?
2. Whether the bond filed by the plaintiff in error was basically sufficient to satisfy the requirements of the above cited statute.
37-6-11, supra, appears to impose two requirements on one who desires to appeal his case from the county court to the district court. Subsection 1 provides that the appeal must be made within 10 days after final judgment. A further proviso declares:
'* * * that the county court, at any time within the period above limited, upon good cause shown, may extend the time for an appeal.'
Subsection 2 declares that the appellant must within the time prescribed, that is 10 days, enter into an undertaking payable to the adverse party.
It would appear from a reading of the cases that the significant step in the perfection of an appeal is the filing of a bond, which would mean that even though the party had given a notice of appeal or had in some other manner manifested intent to appeal, the judicial requirement of a bond filed within 10 days would still remain. See Heil v. Simmonds, 17 Colo. 47, 28 P. 475; Hunt v. Arkell, 13 Colo. 543, 22 P. 826; Law v. Nelson, 14 Colo. 409, 24 P. 2; Straat v. Blanchard, 14 Colo. 445, 24 P. 561. Cf. County Court of City and County of Denver v. Eagle Rock Gold Mining & Reduction Co., 50 Colo. 365, 115 P. 706. Therefore, accepting the premise that the essential requirement is that which demands that the bond be filed within the 10 day period, the ultimate determination is the propriety of the trial court's decision that this bond failed to meet the 10 days reqirement. The record before us sets forth a typewritten copy of the bond originally filed in the county court of Routt County. On it is the notation quoted above from which it is to be inferred that it was filed on August 30, which would be two days late. No other evidence is submitted in support of the finding of the district court. Whether the clerk of the county court actually testified and, if so, whether the testimony established the date of actual receipt of the bond is not disclosed. Plaintiff in error argues that the evidence that the bond was received by the clerk prior to August 30 is just as strong,...
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