11 Colo. 198 | Colo. | 1887
On the 5th of January, 1883, the defendant in error obtained judgment against the plaintiffs in error, in a justice of the peace court, in the county of Arapahoe. On the 17th of March, 1883, the plaintiffs in error filed a petition in the county court of said county, asking that the action in which said judgment was rendered be removed to said county court by writ of certiorari, which was done. The defendant in error after-wards filed a motion to .quash the writ of certiorari, and to dismiss the proceedings had and taken in pursuance thereof, on the grounds — First, that the petition for said writ does not show that the judgment before the justice of the peace was not the result of negligence of the party praying for such writ; second, that the petition does not show that said judgment was unjust; third, that the petition does not show that it was not in the power of the defendants to take an appeal in the ordinary way. This motion was sustained by the court, and a final judgment entered, dismissing the proceedings upon such writ, and awarding a procedendo to such justice’s court. The case is brought here by a writ of error to the county court, and the only question to be decided is whether the petition for the writ of certiorari was sufficient to warrant the issuance thereof.
The action was one of replevin to recover the possession of sleigh-bells alleged to be of the value of $18. The only facts stated in the petition for the writ of certiorari, to show that the judgment was not the result of negligence on the part of the petitioners, are as follows: That, when the constable came to them to serve the writ of replevin, they delivered the sleigh-bells to such constable, stating to him that they did not wish to defend the suit, and that they would pay the costs; tha't the constable thereupon promised them that he would deliver the sleigh-bells to the plaintiff, have the action dismissed, and that he would come to them for the costs as soon as he could ascertain their amount;‘ that they inquired of
The court below committed no error in dismissing the writ of certiorari and awarding a procedendo. The judgment should be affirmed.
Rising and Stallcup, CO., concur.
For the reasons assigned in the foregoing opinion the judgment of the county court is affirmed.
Affirmed.