Thomas v. Beattie
| Decision Date | 03 February 1908 |
| Citation | 42 Colo. 235,93 P. 1093 |
| Parties | THOMAS v. BEATTIE. |
| Court | Colorado Supreme Court |
Appeal from District Court, Rio Blanco County; John T. Shumate Judge.
Proceedings for the allowance of the claim of James Beattie against the estate of John P. Thomas. From a judgment of the county court disallowing the claim, claimant appealed to the district court, where judgment was rendered in his favor, and Thomas G. Thomas, administrator, appeals. Reversed and remanded with directions to dismiss the appeal.
E. A Martin, for appellant.
James C. Gentry, for appellee.
Appellant is the administrator of the estate of John P. Thomas, deceased. In the county court, where the administration proceedings were pending, appellee filed his claim against the estate. Such proceedings were had thereon that the claim was disallowed. From this judgment claimant appealed to the district court. The transcript was lodged with the clerk of that court on July 15, 1904. On August 19th following the administrator filed a motion in the district court asking that the papers be sent back to the county court, for procedure as though no appeal had been taken, on account of claimant's failure to docket his appeal as required by law. When this motion was filed, claimant had not paid his docket fee. On September 5, 1904, claimant paid his docket fee to the clerk of the district court. On the next day, the first day of the regular term of the district court, the motion of the administrator to remand came on to be heard, and was overruled. Later the case was tried before a jury, the court instructing a verdict for claimant, which was returned, and judgment entered thereon. From this judgment the administrator appeals. The errors assigned relate to the action of the district court in overruling the administrator's motion to remit the case to the county court, the refusal of the court to direct a verdict for the estate, and the reception of testimony. It is only necessary to consider the first error assigned.
Section 1807, 3 Mills' Ann. St. Rev. Supp., which relates to proceedings upon appeal from the county to the district court, provides the time within which the original process pleadings, and other papers relating to the suit, together with a transcript of the record entries relating to the action from which an appeal is taken, shall be filed in the office of the clerk of the district court to which the appeal is taken. It further provides: 'In case the appeal is not docketed by the appellant in the district court within thirty days after being lodged with the clerk of the district court, the transcript shall be remitted by the clerk of the district court to the county court, and the county court shall proceed on such judgment as though no appeal had been taken.' This section was under consideration by the Court of...
To continue reading
Request your trial
-
Peterson v. People
...419-20, 80 P. at 1070. In Thomas v. Beattie, we reiterated the notion that each requirement is not necessarily jurisdictional. 42 Colo. 235, 93 P. 1093 (1908). Although we acknowledged that the steps required to appeal a county court judgment are mandatory, we also recognized that procedura......
-
Wigton v. Wigton
...for the reason that the docket fee was not paid, which was clearly within the right of the clerk to refuse under the statute. In Thomas v. Beattie, supra, it appears that more than 30 had elapsed after the papers were lodged in the district court before the appellant paid his docket fee, an......