Alvord v. McGaughey

5 Colo. 244 | Colo. | 1880

Beck, J.

This cause was brought here by writ of error to the District Court-of Ouray County. The defendant in error moves to dismiss the writ upon several grounds, one of which is— ‘‘ there is nothing shown in the record to which the writ will lie.”

An inspection of the record discloses the fact that no final judgment has been entered in the cause, and that the portion of the record supposed to be a judgment, is simply the findings of the court, the cause having been tried by the court without a jury. These findings are as follows: “After hearing the evidence and arguments of the counsel, the court doth find that the said defendants are indebted to the said plaintiff in the sum of two hundred and two dollars, together with his costs in this behalf paid, laid out and expended, taxed at-dollars; and then, upon motion of the said defendants, it is ordered that the plaintiff be taxed with all costs accruing from the date of the filing of the motion in the county court to set aside the appeal bond up to the time when the county court granted the petition for change of venue, and all the remainder of the costs in this cause shall be taxed to the defendants.”

A cross-motion had been interposed for leave to file a supplemental transcript, and the document proposed to be filed is submitted for our inspection. We find it to be simply a bill of exceptions, and certified to be such by the clerk of the district court. It contains an allegation that' a judgment was rendered, but no judgment is set out, although the same findings of the court are copied therein which appear in the original transcript. This statemént that a judgment was rendered does not follow the findings of the court, but occurs immediately after the testimony, and doubtless refers to the findings, characterizing them as a judgment.

Inasmuch as the statement does not appear in the transcript of the record, but only in the bill of exceptions, the plain and necessary inference is that it is a conclusion of the counsel who prepared the bill of exceptions, and that there is no such statement of record in the court below. But if a part of the record, it would not cure the defect, as this statement is not a judgment. In the case of Faulk v. Kellums, 54 Ill. 189, the cause having been tried before a jury, the verdict was: “We, the jury, find in favor of the plaintiff, and assess his damages at $4,493.” A motion for a new trial was made and overruled, and then follows this entry upon the record: “Whereupon, the court enters judgment upon the verdict.” This entry was held not to constitute a judgment, nor to have any element of a judgment other than a bare recognition of the finding of the jury.

Section 185 of the Code of Civil Procedure, requires upon trial of issue of fact by the court, that “judgment shall be entered in accordance with the finding of the court.” By force of section 38 of the Code amendments, Laws 1879, p. 229, the writ of error only lies to such judgments and decrees of the district and county courts as are final. The same rule obtained at common law. Powell on Appellate Proceedings, pp. 45, 46. "While a strict compliance with forms -is not essential in the entry of judgments, yet to constitute a final judgment the record must not only indicate that an adjudication took place, but the entry must have been intended as an entry of a judgment. No such intention is manifest in these transcripts of proceedings. The findings of the court are no more a judgment than would be the verdict of a jury in a cause tried before a jury, and the statement in the bill of exceptions that a judgment was rendered cannot supply the place of the judgment itself.

So far as shown by the transcripts, the clerk of the court below has never entered up a final judgment in this cause, and it remains a Us pendens in the district court.

Judgment may yet be entered upon the findings of the court. Powell on Appellate Proceedings, page 129, section 22; Cody v. Filley, 4 Col. 109; Kinsley v. The State of Ohio, 3 Ohio St. 508.

The motion to dismiss the writ of error will be sustained.

Writ of Error dismissed.