Adams v. Decker

50 Colo. 236 | Colo. | 1911

Mr. Justice Gabbert

delivered the opinion of the court:

The statutes of the state relating to- appeals from the judgment of a justice of the peace to the county court, provide that the party praying the appeal shall, within ten days from the rendition of the judgment from which he desires to appeal, enter into a bond to be approved as the statute directs. This bond may be filed -with the justice who rendered the judgment, and be approved by bim, or it may be filed in tbe office of the clerk of the county court of the proper county within the time provided for taking’ an appeal. If the latter method is adopted, which was the one in the case at bar, such bond shall be approved by the clerk of the county court. — Sections 2679, 2681 and 2682, 2 Mills’ Stats.

The provision relating to the time within which an appeal from a judgment rendered by a justice of’ the peace to. the county court may be taken, is mandatory, and jurisdictional, and unless the party praying the appeal shall, within ten days from, the rendition of the judgment by the justice of the peace, enter into a bond with approved securities, and, if the appeal is not thus taken within this statutory period, the county court has no jurisdiction, and should dismiss the appeal, either on its own or appellee’s motion. — Horn v. Martin, 38 Colo. 364. It stands undisputed from the record, that, at the time the appeal bond was filed in the county court, there was a regularly appointed, duly qualified, and acting clerk of that tribunal; that the bond was never approved by that official, notwithstanding the recital in the supersedeas, but was approved by the judge. Until the bond was approved by the proper official, it was of no force or effect. Merely filing it was not sufficient. The nunc pro tunc order did not purport to cure an omission of the clerk to. indorse an approval of the bond, but was to the effect that, on the date it was filed, it had been approved by the judge of the court and an order was directed that the same be endorsed as approved by the judge as of. that date. A failure to indorse its approval — if, in fact, it had been approved — would not, of course, prejudice the rights of the party filing the bond; but the question here presented is, whether the bond was ever approved by the proper official.- If it was not, then an appeal was not taken within the statutory period, and the motion to dismiss the appeal upon this ground, should have been sustained.

On the authority of McNevin v. McNevin, 28 Colo. 245, we think the question must be answered in' the negative. In that case it was held that a county judge may elect to perform the duties of clerk of his court, but when he has appointed a clerk, then, so long as the appointment is not revoked, the clerk (or his deputy alone has power to discharge the official duties which the law directs shall he performed by him.

The defendant may have had a good defense to the action which he sought to have tried on appeal to the county court, but appeals are creatures of the statute, and a party desiring to avail himself of the right to a trial de novo by taking an appeal, must comply with the provisions of the statutes on the subject.

The judgment of the county court is reversed, and the cause remanded with directions to- dismiss the appeal.

Reversed and remcmded, with directions.

Chief Justice Campbell and' Mr. Justice T-Ttt.t, concur.