75 Colo. 90 | Colo. | 1924
delivered the opinion of the court.
The district court dismissed the appeal which the plaintiff in error took from the county court and the case is brought here by him for review.
Charles sued Sprott in the Mesa county court, and Sprott filed a counterclaim. At the close of plaintiff’s evidence the court sustained a motion for nonsuit on the complaint and a motion for a directed verdict for $300 in favor of defendant on the-counterclaim. The judgment was for defendant for $300 and costs. The above orders seem to have been entered as if they were part of the judgment. It is better practice to enter them separately.
This judgment was rendered December 19, 1922. Within the statutory five days plaintiff filed a motion for a new trial which was heard and overruled January 10, 1923, and on the 16th plaintiff filed his bond on appeal to the district court. The appeal was dismissed on the ground that it had not been “made” within ten days after the judgment as required by statute. This was an error. The plaintiff in error claims that the judgment was one of nonsuit, and that upon such a judgment he was required to move for a new trial before he could appeal at all (C. L. §§ 5776 and 5777), and that within ten days from the overruling of his motion he perfected his appeal. Be that as it may, it is immaterial. He had a right to move for a new trial and did so. The motion suspended the judgment, so that it became final only when the motion was overruled, January 10th (Bates v. Woodward, 66 Colo. 555, 185 Pac. 351; Kinney v. Yeolin Bros. Co., 74 Colo. 295, 220 Pac. 998), and the appeal was perfected within ten days thereafter.
Objection is made that the appeal bond was insufficient because it refers only to the judgment for $300 and not to the judgment on the complaint. The objection is not good. When there are two or more causes of action for damages, upon a verdict for plaintiff it is proper to render one judgment for the whole amount recovered whether upon one
The judgment is reversed and the district court is directed to reinstate the appeal and proceed with the case.
Mr. Chief Justice Teller and Mr. Justice Whitford concur. j
