12 Colo. App. 544 | Colo. Ct. App. | 1899
Suit brought in tbe district court of Arapahoe county by the Equitable Securities Company against Robert S. Campbell, the Farm Investment Company, Henry J. Aldrich, George S. Adams, public trustee, and the public trustee of Weld county, to cancel a deed of release executed by Aldrich, and for other relief. Judgment for the plaintiff, from which appeal is prosecuted to this court.
When the transcript was lodged in this court, the appellee interposed a motion to dismiss the appeal, because the other defendants’ did not join in the bond. The motion recited that the record showed that Robert S. Campbell, George S. Adams, public trustee, the Farm Investment Company, and the public trustee of Weld county prayed a joint appeal from the judgment, and that the appeal was granted on the condition that such appellants execute the appeal bond. The motion was based solely on this alleged condition of the record. The statement in the motion that the defendants jointly prayed an appeal is not correct. The defendant Campbell prayed, and was allowed, a separate appeal. Section 400 of
Section 25 of the code provides that actions for the recovery of real property, or of any interest therein, or for the determination of any form of such right or interest, shall be tried in the county in which the subject of the action, or some part thereof, is situated; and section 29 provides that the court may, on good cause shown, change the place of trial when the county designated in the complaint is not the proper county. If this is an action for the determination of some form of interest in real estate, the county designated in the complaint was not the proper county for trial, and Weld county, where the subject of the action was situated, was the proper county; and upon the presentation by Campbell of his motion to change the place of trial, it was the duty of the court to order the change, and its failure to do so was error. Smith v. The People, 2 Colo. App. 99; Pearse v. Bordeleau, 3 Colo. App. 351. But it is said that no exception was preserved to the ruling of the court denying the motion, and that hence the question of the correctness of the ruling is not before us. We are of the opinion that no formal exception was necessary. It is provided by section 387 of the code that no exceptions need be taken to opinions or decisions sustaining or overruling demurrers or written motions affecting, or based on, the pleadings; but that all such opinions and decisions, together with the demurrers and motions, shall be taken as part of the record without being made such by the bill of exceptions. This motion was based' on the complaint. No evidence aliunde was needed to support it, all the facts necessary to its determination appeared on the face of the complaint, and nothing was lost by failure to except to the ruling.
We come now to the main question, and that is whether this was an action for the determination of some form of in
The judgment is reversed and remanded, with instruction to the court below to transfer the cause to the district court sitting in Weld county.
Reversed.