Swofford Bros. Dry-Goods Co. v. Livingston

• Decision Date: 22 March 1901
• Citation: 65 P. 413,16 Colo.App. 257
• Parties: SWOFFORD BROS. DRY-GOODS CO. et al. v. LIVINGSTON et al. [1]
• Court: Colorado Court of Appeals

65 P. 413

16 Colo.App. 257

SWOFFORD BROS. DRY-GOODS CO. et al. v. LIVINGSTON et al. ^[1]

Court of Appeals of Colorado

March 22, 1901

Appeal from district court, Pueblo county.

Action by the Swofford Bros. Dry-Goods Company and others against Isaac Livingston and others. From a judgment for defendants plaintiffs appeal. Former opinion withdrawn. Reversed.

W.B Vates, E.C. Glenn, W.B. McNeel, Bickslor & McLean, and Rogers, Cuthbert & Ellis, for appellants.

C.S Essex, for appellees.

THOMSON, J.

This is a suit upon a bond executed for the purposes of an appeal. Judgment was rendered for the defendants upon the complaint answer, and replication. The following is what those pleadings show: The judgment from which the appeal was attempted was a judgment against the defendants annulling certain chattel mortgages and directing an accounting. The defendants, thinking to secure a reversal in the supreme court, prayed an appeal. The district court allowed the appeal, fixed a time for giving the bond, and approved the bond when it was given. The defendants attempted to prosecute their supposed appeal by lodging the proper transcript in the supreme court. When the case was finally reached in that tribunal, it was disposed of by the following order: "Isaac Livingston, Othelia Glass, and Z. Taub, Appellants, vs. Swofford Bros. Dry-Goods Company et al., Appellees. Appeal from the district court of Pueblo county. At this day come the parties hereto by their attorneys of record, and this cause coming on for oral argument, and it appearing that this court is without jurisdiction to hear and determine this cause, it is therefore ordered by the court that the appeal herein be, and is hereby, dismissed for want of jurisdiction; and the clerk of this court is directed to transmit all files in this cause to the court of appeals, if said appellants shall so elect to further prosecute." The following is a copy of the bond: "Know all men by these presents, that we, Isaac Livingston, Othelia Glass, and Z. Taub, as principals, R.F. Lytle, as surety, all, except the said Livingston, of the county of Pueblo and state of Colorado, are held and firmly bound unto Swofford Brothers Dry-Goods Company, a corporation, and all others to this cause as plaintiffs named, in the penal sum of three thousand dollars, for the payment of which well and truly to be made we, and each of us, bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated at Pueblo, Colorado, this 26th day of February, in the year of our Lord one thousand eight hundred and ninety-five. The condition of the above obligation is such that whereas, the said Swofford Brothers Dry-Goods Company, a corporation, and said other plaintiffs, did, on the 13th day of January, one thousand eight hundred and ninety-five, at a term of the district court then being holden within and for the county of Pueblo, in the Tenth judicial district of the state of Colorado, obtain a judgment and decree against the above-bounden Isaac Livingston, Othelia Glass, and Z. Taub, setting aside and annulling certain chattel mortgages to them executed by I.S. Glass, bearing date June 15, 1894, for costs of suit and other relief, said case being numbered 4,391, from which judgment and decree the said Isaac Livingston, Othelia Glass, and Z. Taub have prayed for and obtained an appeal to the supreme court of said state of Colorado: Now, if the said appellants, Isaac Livingston, Othelia Glass, and Z. Taub, shall duly prosecute said appeal, and shall pay to said Swofford Brothers Dry-Goods Company et al., the said appellees, all costs and damages that shall be adjudged to said appellees on said appeal, and also if said appellants will satisfy and perform the said judgment or order appealed from in case it shall be affirmed, and any judgment or order which the supreme court of said state may render, or order to be rendered by the said district court, not exceeding in amount or value the original judgment rendered in the district court, then the above obligation to be null and void; otherwise, to remain in full force and virtue. Isaac Livingston. [ L.S.] By Patrick & Essex, his Attorneys. [ L.S.] Othelia Glass. [ L.S.] Z. Taub. [ L.S.] R.F. Lytle. [ L.S.]" The breaches assigned are the dismissal of the appeal, the neglect of the defendants to take another appeal or procure the allowance of another supersedeas within 30 days after the dismissal, and their failure to perform the judgment from which the appeal was taken.

Except where the controversy relates to a franchise or freehold there is no appeal to, or writ of error from, the supreme court, to review the final judgment of an inferior court, unless the judgment, or, in replevin, the value found, exceeds $2,500, exclusive of costs. Section 406a, Mills' Ann.Code. The only appeal bond provided for by the statute is conditioned for the payment of the judgment, costs, interest, and damages, if the judgment shall be affirmed, and for the due prosecution of the appeal. Section 388, Id. The controversy here does not relate to a franchise or freehold, the case was not replevin, and the judgment was for no specific sum. There could, therefore, be no appeal from that judgment to the supreme court. Except as to the due prosecution of the appeal, the conditions of the bond were not those required by the statute, and the bond was not a statutory obligation. There was no appeal, and all the proceedings by means of which an appeal was attempted were void. But, conceding to the defendants that the appeal bond is not a...