Western Union Tel. Co. v. Graham

• Decision Date: 01 July 1870
• Citation: Western Union Tel. Co. v. Graham, 1 Colo. 182 (Colo. 1870)
• Parties: WESTERN UNION TELEGRAPH COMPANY v. GRAHAM.
• Court: Colorado Supreme Court

1 Colo. 182

WESTERN UNION TELEGRAPH COMPANY v. GRAHAM.

Supreme Court of Colorado

July, 1870

Error to Arapahoe District Court.

UPON motion to vacate order allowing supersedeas and to dismiss the writ of error.

Messrs CHARLES & ELBERT, in support of the motion.

MR ALFRED SAYRE, contra.

BELFORD J.

Two points are presented, on which it is claimed that this motion to dismiss the writ of error should be sustained. First, that a former writ of error was sued out in this case, and voluntarily dismissed by the plaintiff in error. It is conceded in the argument that the cause of the dismissal of the first writ of error was the failure of appellant to file a cost bond. The statute provides, section 14, page 153, that in all actions in law and equity when the plaintiff or person for whose use an action is to be commenced shall not be a resident of this territory, the person for whose use such action shall be commenced, shall before he institutes such suit, file, etc., with the clerk, etc., a bond for costs, and on failure so to do, the cause shall be dismissed. If no action had been taken by the plaintiff in error in reference to the dismissal, it is clear that the court, on motion of the defendant in error, would have struck the cause from the docket.

In the case of Hax v. Leis, post, 187, where the same principle was to some extent involved, we held, that to make a dismissal of an appeal operate as a bar to a subsequent appeal or writ of error, the appeal must have been dismissed not for a defective record or insufficient bond or the like but for a failure to prosecute the appeal after it had been regularly and properly in the supreme court. A writ of error is a new suit, and before it can be prosecuted, if the plaintiff in error is a non-resident, he must file a cost bond. If he fails to do so, he has no standing in court; his case cannot be heard on the merits, if objection be made. It is not regularly and properly in court, and by dismissal for a failure to comply with the required conditions on which it can be alone prosecuted, it cannot act as an affirmance of the judgment below, or as a bar to a subsequent writ of error. When a dismissal operates as a bar to subsequent writ of error. When cause dismissed must have been in the appellate court regularly and properly in a position to have been heard upon its merits. And being in this position, if the party fails to prosecute his cause in the appellate tribunal, and the same is dismissed, he must abide the consequences, whatever these may be, and cannot be heard at another time. It may be urged, that in allowing a party who has dismissed one writ of error to sue out another we give encouragement to a loose and careless practice. This may be true, but to adopt any other rule would be attended with the most serious and hurtful consequences to the rights of litigants. 1 Duer, 252; Korth v. Light, 15 Cal. 326; United States v. Pacheco, 20 How. 263. The second ground assigned for the motion is, that the bond or bonds, for there are two, are defective and insufficient. The first bond and the one on which the writ of error was had, and the supersedeas allowed, purports to be executed by the Western Union Telegraph Company, by Alfred Brewer, its attorney in fact. It is objected that there is no sufficient evidence before this court, showing that Alfred Brewer was authorized to execute this bond. The bond bears date June 30, 1869, and was filed and approved the same day. It further appears from an exhibit in the case, that at a meeting of the executive committee of the board of directors of the Western Union Telegraph Company, held at the principal office of the company in the city of New York, on the 22d day of May, 1869, a resolution was unanimously adopted by said...