Willoughby v. George

• Decision Date: 01 December 1879
• Parties: WILLOUGHBY v. GEORGE.
• Court: Colorado Supreme Court

5 Colo. 80

WILLOUGHBY v. GEORGE.

Supreme Court of Colorado

December, 1879

Error to District Court of Boulder County.

MOTION to dismiss writ of error. The case is stated in the opinion.

Mr JOHN W. HORNER, for appellant.

Mr THOMAS GEORGE, pro se, contra.

ELBERT J.

This was an action of replevin brought by George against Willoughby. Judgment was rendered against Willoughby, Nov. 3 1877, after the Code went into effect.

At the date of the rendition of the judgment, and thereafter until the passage of the act of Feb. 24, 1879, the only method of review was by appeal. A writ of error did not lie. This was decided on a motion to dismiss a writ of error sued out by Willoughby in this case, returnable to the December Term, 1877. Willoughby v. George, 4 Col. 22.

February 24, 1879, the legislature passed a law providing that 'Writs of error shall lie from the Supreme Court to every final judgment of the several district and county courts of this State, and such writs of error shall be amendable, and this section shall be deemed to apply to all judgments or decrees which have been rendered since the first day of October, A. D., 1877, by any district or county court.' Sess. Laws 1879, Sec. 38, p. 229.

The present writ is sued out under the provisions of this section. The motion to dismiss is based on the constitutional prohibition of laws 'retrospective in their operation.'

The Code (Sec. 338) provided that an appeal might be taken from a final judgment 'within six months after the rendition of the judgment.'

By reference to the date of the judgment, it will be seen that the time within which Willoughby could prosecute an appeal under the law, as it then stood, had elapsed long prior to the passage of the act of the 24th of February, 1879.

Statutes limiting the time within which a review may be had, whether by appeal or writ of error, are in the nature of statutes of repose. They fix a period when litigation shall have an end, that the rights of litigants may become settled and established.

In the case of Fleet v. Youngs, 11 Wend. 522, the statute requiring a writ of error to be brought within two years after the rendition of the judgment, is treated by Chancellor Kent as a Statute of Limitation, and the lapse of time there under as a defense to be pleaded in bar, or if apparent from the record, available on motion to dismiss.

In the case of Brooks v. Norris, 11 How. 207*, Chief Justice Taney says: 'In this case five years had elapsed before that writ of error was brought and the limitation of time in the act of Congress was a bar to the writ. * * * The bar arising from lapse of time is apparent on the record, and the defendant may take advantage of it by motion to quash or dismiss the writ.'

It is true a writ of error is the commencement of a new suit, and an...