Wigton v. Wigton

• Decision Date: 05 November 1917
• Docket Number: 8885.
• Citation: 169 P. 133,69 Colo. 19
• Parties: WIGTON v. WIGTON.
• Court: Colorado Supreme Court

169 P. 133

69 Colo. 19

WIGTON v. WIGTON.

No. 8885.

Supreme Court of Colorado, En Banc.

November 5, 1917

Rehearing Denied Dec. 4, 1917.

Error to District Court, Pueblo County; C. S. Essex, Judge.

Action in the county court by Hattie Wigton against W. I. Wigton. From the judgment of the county court for plaintiff defendant appealed to the district court, and from the decision there rendered brings error. Reversed and remanded.

John H. Voorhees, of Pueblo, for plaintiff in error.

E. O Phlegar, of Pueblo, for defendant in error.

SCOTT J.

This is an action in replevin by the defendant in error against the plaintiff in error to recover possession of two certain account books described in the complaint as follows:

'One daybook, containing the entries of loans made and the amounts thereof and the parties to whom made by the plaintiff from about December 1, 1914, to about April 25 1915, which said book is of the value of $500.

'One ledger, containing the names of parties to whom plaintiff has made loans, the amounts thereof, and the payment made thereon, which book contains the account of the transactions of plaintiff the past five or six years to the present date, which book is of the value of $500.'

Verdict and judgment for plaintiff below.

The first question for consideration, upon cross-error, is the action of the trial court in overruling the motion of defendant below to remand to the county court the transcript and all papers in the cause, for procedure as though no appeal had been taken, for the reason that the appellant has failed to docket his appeal as required by law. Section 1538, Rev. Stat. 1908.

The action was instituted in the county court, and verdict and judgment there rendered in favor of the plaintiff, and from which judgment the defendant appealed to the district court. Judgment was rendered in the county court on the 8th day of July, 1915. Transcript and appeal bond were properly filed with and the bond approved by the clerk of the district court on the 16th day of July, 1915, and on the same day the cause was entered upon the docket of that court. The docket fee was not actually paid to the clerk of the district court until the 30th day of August, 1915.

It will be seen that the cause was properly filed and docketed within the 10 days required by statute. The sole ground for the motion is that the docket fee was not paid within 30 days. Upon this point the deputy clerk of the district court testified as follows:

'About July 10th or 12th Judge Voorhees came into the office and said there would be a case appealed from the county court, and said I should docket it and bill on him for it. Judge Voorhees has an account, and we docketed the case and put it in his account. We docketed the case at once when transcript came up. We send out bills the 1st of each month. I do not know whether this bill was sent out or not, as I was away on my vacation. The record shows docket fee paid August 30, 1915. Q. I will ask you, upon the statement I made to you, did you extend to me, as attorney, credit for the docket fee in this case? A. I did.'

The question to be determined is: Was this a sufficient compliance with the statute as to the payment of the docket fee as to justify the district court in retaining jurisdiction of the cause? The precise question seems not to have been determined by this court nor by the Court of Appeals.

In the consideration of the question we bear in mind that statutes giving the right of appeal are liberally construed in furtherance of justice, and that such interpretation as will work a forfeiture of the right is not favored. In Childers v. Baird, 59 Colo. 382, 148 P. 854, we declared the principal that, where the parties act in good faith and with reasonable promptness, the courts deal with them liberally, and that courts are reluctant to permit an appeal to fail where there has been no culpable fault, although there may have been some errors or irregularities.

Counsel for defendant in error rely chiefly on Tierney v. Campbell, 7 Colo.App. 299, 44 P. 948, and Thomas v. Beattie, 42 Colo. 235, 93 P. 1093. It is clear that the language in the first of these cases conveys the impression that the deposit of the fee is a part of the statutory process of appeal, and that a failure or neglect to make such deposit deprives the district court of jurisdiction of the cause. It is just as clear that it was not necessary to so determine in that case.

The language relied on in Tierney v. Campbell, supra, is as follows:

'The taking and manner of perfecting appeals is regulated by statute, a strict compliance with which is requisite. Otherwise no appeal is taken. While the proceedings in the county court by the filing of the bond, etc., were sufficient to divest that court of jurisdiction, to perfect the appeal and confer jurisdiction on the appellate court required the payment of the docket fee and the docketing of the case. Unless the docket fee was paid and the case [was] docketed within 30 days, no appeal was perfected and no jurisdiction conferred upon the district court, and it became the duty of the clerk to transmit the papers to the county court from which they came.'

But in that case not only was the docket fee not paid, but the case was not docketed, and while it was not so stated in the opinion, it may be well assumed that the case was not docketed, 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 days had elapsed after the papers were lodged in the district court before the appellant paid his docket fee, and, as in Tierney v. Campbell, it does not appear that the case was docketed by the clerk, which may have been for the same reason as we have suggested in the latter case. Then, under the facts in both cases relied on there was a failure to docket, coupled with a failure to pay the docket fee. In neither case was there any pretense of waiver or other reason or excuse for not tendering or paying the fee, and it was only upon such payment the appellant was entitled as a matter of right to have his appeal docketed.

In People v. District Court, 33 Colo. 416, 80 P. 1069, it was held that, where the appellant had complied with the requirements of the statute within the prescribed time, the failure of the clerk to formally enter it on the docket could not defeat the appeal, and this notwithstanding the specific language of the statute 'that in case the case is not docketed the case may be remitted,' etc. The court adopted the common sense view that, when the appellant had done all that the law required of him, it was sufficient. But the important declaration in that case was the repudiation of the statement in Tierney v. Campbell that the payment of the fee and...