Zimmerman v. Combs

• Citation: 91 Colo. 313,14 P.2d 693
• Decision Date: 12 September 1932
• Docket Number: 13115.
• Parties: ZIMMERMAN v. COMBS et al.
• Court: Supreme Court of Colorado

14 P.2d 693

91 Colo. 313

ZIMMERMAN v. COMBS et al.

No. 13115.

Supreme Court of Colorado

September 12, 1932

Rehearing Denied Oct. 3, 1932.

In Department.

Error to District Court, Routt County; Chas. E. Herrick, Judge.

Action by H. E. Combs and H. P. Heid, copartners doing business under the firm name of F. Muench & Co., against E. H Zimmerman. Judgment in favor of plaintiffs, and defendant appealed to the district court, which entered a judgment of dismissal, to review which defendant brings error.

Reversed and remanded, with direction.

Joseph K. Bozard, of Steamboat Springs, for plaintiff in error.

Gooding & Monson, of Steamboat Springs, for defendants in error.

BUTLER J.

H. E. Combs and H. P. Heid, copartners doing business under the name of F. Muench & Co., obtained a judgment against E. H. Zimmerman in the county court of Routt county. Zimmerman attempted to appeal to the district court but his appeal was dismissed.

On November 30, 1931, which was within the time required by section 5777 of the Compiled Laws, Zimmerman tendered to the judge of the county court an appeal bond signed by E. H Zimmerman, as principal, and H. R. Zimmerman, as surety. The bond was in proper form. The judge made no objection to the bond or to the sufficiency of the surety. On the contrary, when the bond was tendered, he remarked 'All right,' affixed his official certificate to the effect that it was filed November 30, 1931, and retained the bond in his possession. On December 7, which was after the expiration of the statutory time for making the appeal, the judge informed E. H. Zimmerman that counsel for Combs and Heid objected to the bond, and the judge suggested the advisability of having another surety sign the bond. Acting on the judge's suggestion, Zimmerman, on the very next day, obtained the signature of another surety. The bond bears this certificate signed by the judge: 'Approved by me this 8th day of December, A. D. 1931.' After the case was docketed in the district court, that court, on motion, dismissed the appeal, holding that the appeal was not taken, or made within the statutory time.

Section 5777, C. L., requires appeals from the county court to the district court to be 'made' within ten days after judgment is rendered. An appeal is not 'made' until the appeal bond is approved. See Heil v. Simmonds, 17 Colo. 47, 28 P. 475; Hunt v. Arkell, 13 Colo. 543, 22 P. 826; Law v. Nelson, 14 Colo. 409, 24 P. 2; Straat v. Blanchard, 14 Colo. 445, 24 P. 561.

In Childers v. Baird, 59 Colo. 389, 395, 148 P. 856 859, we quoted with approval the following statement by Elliott, in section 377 of his Appellate Procedure: 'Where the parties act in good faith and with reasonable promptness, the courts deal with them liberally. The courts, it has been often said, are reluctant to permit an appeal to fail where there has been no culpable fault, although there may be some errors or irregularities.' That Zimmerman acted promptly and in good faith, and that there was no culpable fault on his part, is beyond question. The statute does not prescribe any particular manner or form in which the appeal bond on appeal from a county court to a district court must be approved. The same is true of appeals from a justice of the peace to a county court. Stephens v. Wheeler, 60 Colo. 351, 355, 153 P. 444. In Adams v. Decker, 50 Colo. 236, 114 P. 654, cited with approval in Stephens v. Wheeler, supra, we held that a failure to indorse approval on an appeal bond, if in fact it had been approved, would not prejudice the...