Wike v. Campbell

• Decision Date: 01 December 1879
• Citation: 5 Colo. 126
• Parties: WIKE ET AL. v. CAMPBELL.
• Court: Colorado Supreme Court

5 Colo. 126

WIKE ET AL. v. CAMPBELL.

Supreme Court of Colorado

December, 1879

Error to County Court of Boulder County.

THE case is stated in the opinion.

Mr PLATT ROGERS, for plaintiff in error.

Mr RICHARD H. WHITELY, for defendant in error.

BECK J.

The plaintiff in error sued out a writ of attachment before a justice of the peace of Boulder county against the goods and chattels of Partridge & Moore, copartners, and caused the same to be levied upon certain articles of personal property as the property of said copartners.

Samuel J. Campbell, defendant in error, claiming to be the owner of the attached property, filed his affidavit before the Justice, setting forth his claim to the property under the provisions of section 12 of the Attachment Act of 1879, Sess Laws, p. 21.

Upon the trial the Justice found the issues against the defendants, Partridge & Moore, and rendered judgment against them for the amount of the plaintiff's demand. Upon trial of the issue joined as to Campbell, it was adjudged against him, the court finding that Partridge & Moore were the owners of the goods and chattels claimed, and that they were subject to the writ of attachment.

Appeals were prayed from the judgments of the Justice by Partride & Moore, and also by Campbell, to the County Court of Boulder County, but the only appeal in fact taken was that prayed by Campbell, the other parties failing to execute an appeal bond. Upon trial de novo in the county court, defendant in error recovered a judgment in his favor, to reverse which Wike and Ellison bring this writ of error.

It is assigned for error, among other things, that the county court erred in denying the motion of plaintiff in error is dismiss Campbell's appeal, and that it erred in permitting him, against their objections, to file a new or amended appeal bond. There is no bill of exceptions in the case, and while the written motion to dismiss, as well as the original and amended bonds, have been copied into the record by the clerk of the court below, it is well settled that papers filed in the progress or trial of a cause at nisi prius, and not intrinsically parts of the record, cannot become such by being incorporated therein. They are still extrinsic-are de hors the record-and can only be made part of it by a bill of exceptions. This rule embraces affidavits, bonds, stipulations of parties, the contents of written motions, as well as all other papers belonging to the files which are not intrinsically parts of the record. Filley v Cody, 4 Col. 542. Anderson v. Sloan, 1 Col. 33, and cases there cited; Smith v. Wilson, 26 Ill. 187; Eggleston v. Buck, 24 Ill. 262; Douglass v. Parker, 43 Ill. 146; Wilson v. McDowell, 65 Ill. 522. In the absence of a bill of exceptions, therefore, the contents of the appeal bonds filed by Campbell, and the grounds assigned in the motions to dismiss the appeal, are not before us in such manner that we can look into them for the purpose of determining the regularity of the appeal, or whether the county court acted properly or otherwise in denying the motions to dismiss and in allowing defendant in error to file an amended appeal bond.

The same observations apply to the supposed appeal of Partridge & Moore; but since the record fails to show that any appeal was taken by them, or that the county court adjudicated the cause as to them, there is no cause pending here as to these parties.

In this state of the record, the only question which properly arises for our consideration is, whether the county court had jurisdiction to entertain the appeal taken by defendant in error, and to grant him a trial de novo.

It is contended by counsel for plaintiffs in error, that in the present condition of our statutes upon this subject, no provisions exist for perfecting and trying appeals of this nature.

By Section 38 and succeeding sections of Chapter 50, R. S., appeals from judgments of justices of the peace lay to the district court, and the trial was de novo.

All necessary regulations for perfecting and prosecuting such appeals are incorporated in this act, and Section 43 extends the right to one or more plaintiffs or defendants, without consent of the others. The first State Legislature, by Section 3 of an act entitled 'An act in relation to the jurisdiction of justices of the peace, and the practice in justices' courts,' approved March 14, 1877 (General Laws, Sec. 1,599), provides as follows: 'All appeals from judgments of justices of the peace, both in civil and criminal matters, shall be taken to the county court of the same county, and no appeal shall lie from a judgment of a justice of the peace in any cause, civil or criminal, to the district court.'

The last section of this act is as follows: 'All acts and parts of acts inconsistent with this act are hereby repealed.'

Referring to the General Laws (1877), we find chapter 50, R. S., copied into this volume as a portion of chapter 55, the section before alluded to being modified so as to read 'county court' instead of 'district court' in all instances. The word 'district' has been stricken out wherever it occurred, and the word 'county' inserted, which are the only changes made in this particular. As the chapter has been transcribed and now appears in the general laws, appeals lie to the county court, and all necessary regulations exist for rendering them effectual. But the authority thus to modify the former law and to compile the statutes on the subject in their present shape is questioned.

The general laws were compiled and the modifications complained of were made by the first Secretary of State after the adoption of the constitution, under the provisions of an act approved March 22, 1877, requiring him 'to prepare or cause to be prepared and printed, all the general laws passed by the General Assembly; all generallaws now in force and not repealed by this General Assembly, the same to be arranged in a concise and compact form, so as to have all the law upon each subject arranged together under the same title as far as practicable,' etc. Section four of this act provided that the secretary should make and print with said laws his certificate certifying that they were published by authority of the State, and such certificate so printed should be prima facie evidence of the existence of such laws in all the courts of the State. A subsequent section provided that when the secretary was in doubt whether any of the general laws found in the...