58 Colo. 289 | Colo. | 1914
delivered the opinion of the court:
Plaintiff undertook an appeal to tbe District Court of that county. Tbe appeal bond, as appears on its face, was approved January 21, 1913, but was indorsed “Filed this 23rd day of January, A. D. 1913.” January 22, 1913, an order was entered in tbe cause in the County Court directing tbe transmission of the record to the District Court, in which it was recited “that tbe bond of appeal has been filed and approved in manner and form as required by law, and all other things necessary to be done therein have been done to complete this appeal,” and on tbe 24th of that month tbe case was lodged in tbe District Court. Defendant appeared specially and filed a motion to dismiss tbe appeal, upon the
The first matter urged is that the appeal bond" from the County to the District Court was not filed within ten days after judgment, as provided by statute. This involves the question of when the judgment was rendered by the County Court. Plaintiff in error contends that, as the verdict was returned on December 17, 1913, and no order reserving the cause for argument or further consideration, or granting a stay of proceedings, was made, judgment was by operation of law rendered of that date, entry thereof being a purely ministerial duty, under and by virtue of section 243 of the Code of 1908, which reads as follows:
“When trial by jury has been had, judgment shall be entered by the clerk in conformity to the verdict, within twenty-four hours after the rendition thergoi, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings; but' such entry of judgment shall not prejudice any motion for a new trial made in due time. ’ ’ .
But plaintiff in error says that, even if such view be taken, the appeal bond was nevertheless filed on January 23rd of that year, more than ten days after judgment* was rendered, and therefore the appeal failed. While it is true that the filing mark bears such date, it appears upon the face of the instrument that it was approved on the 21st day of January, 1913, within the statutory period. The order transferring the record to
It is next urged for a reversal that the appeal, bond was insufficient to confer jurisdiction upon the District Court, in that it is not a compliance with the statute regulating such appeals, Section 1537 E. S. 1908. Upon this proposition the District Court, in overruling the motion to dismiss the appeal, found that although such bond was defective, there was an honest effort-made to file a good and sufficient one, and allowed defendant to file an amended bond to conform to the statute. This action of the court was entirely proper and in harmony with the decisions construing the law respecting such amendment. It would have been error for the court to have denied such leave. Section 1539, E. S. 1908, reads in part -as follows:
“Provided, further, that no appeal shall be dismissed on account, of a defect or informality in the undertaking, or the insufficiency thereof, if the appellant or appellants shall, within a reasonable time, to be fixed by the court, file a good and sufficient undertaking.”'
Wheeler v. Kuhns, 9 Colo. 196, 11 Pac. 97; Fuller v. Estate of Fuller, 7 Colo. App. 555, 44 Pac. 72. The opinion in the case of D. & R. G. R. R. Co. v. Paonia Ditch Co., 49 Colo. 281, 112 Pac. 692, has no application here, because there no request was made to file an amended bond and that question was not considered.
The remaining contention is that the court erred in ordering special execution, commanding the sheriff to
“No execution shall issue upon any judgment against a decedent, *' * * but such judgment shall be filed, allowed and paid in the same manner as other fourth class claims against such estate.”
is cited to support the contention, that this judgment should have been filed, allowed and paid out of the estate as a fourth class claim. The record shows that at the commencement of the action certain property was attached and by stipulation converted into cash and held in court to be applied in payment of whatever judgment plaintiff might recover. The attached property was segregated from the estate of Hanthorne, prior to his death, and never came into the hands of the administrator, but the proceeds therefrom followed the suit on appeal to the District Court, and was under its exclusive jurisdiction and control. These proceeds were no part of the estate, and could become so only upon the contingency that plaintiff failed to recover judgment and sustain his attachment. This contingency never happened, and it was, therefore, entirely proper for the District Court to direct the application of the money to the partial satisfaction of plaintiff’s judgment.
Judgment affirmed.
Chief Justice Musser and Mr. Justice White concur.