16 Colo. 10 | Colo. | 1891
The present writ of error is prosecuted for the purpose of reversing the action of the court below dismissing an appeal thereto from the county court. The appeal in question was not taken during the day on which the judgment was rendered, nor was a notice in writing served upon appellant’s attorney of record within five days after the appeal was perfected. The action of the district court
The record proper before us does not recite all the orders and proceedings of the trial court after the taking of the appeal and prior to the motion to dismiss. "We find nothing in the portion presented decisive upon the question of waiver.
The bill of exceptions, however, contains affidavits by each of the two opposing counsel. The affidavit of counsel for appellant recites certain facts relied upon by him as showing an abandonment of the right to dismiss the appeal. Among the matters recited are a number tending to establish a general appearance in the court below by counsel for appellee, and participation in proceedings connected with the cause, before interposing his motion to dismiss. The counter-affidavit of appellee’s counsel contains no positive denial, specific or general, of these matters. It simply states that his first appearance in the district court was when he filed his motion to dismiss the appeal. This is merely counsel’s legal opinion as to what constituted an appearance,— the very question the court was to consider and determine upon the proofs. Bor the purposes of the present review, we must therefore assume that the specific matters in question stated by appellant’s counsel are true.
Acting upon the foregoing assumption, we find that at the first term of court subsequent to the taking of the appeal counsel for appellee was present, and objected to proceeding to trial, on the ground that it was not the custom of the court to try causes at the term at which they had beén docketed; also that thereupon, in deference to counsel’s further declaration that he did not want to try the cause at that term, it was continued; that at the second "term subsequent to the appeal, when the cause was called,
The foregoing admitted facts unquestionably establish such an appearance in the court below as constituted a waiver of the right to insist upon a motion to dismiss, under the statute. It would no doubt be more regular and satisfactory if matters relied upon as showing a general appearance were in some way evidenced by the record proper or files of the cause; but we cannot say that the absence of such authentication should in all cases be held decisive of the question. Some of the facts above stated, toushing the conduct of counsel for appellee in open court before interposing his motion, and others that might be mentioned, are of such a nature that they would not necessarily appear upon the judge’s docket, the clerk’s record, or the files.
The judge himself cannot be expected always to remember the conduct relied on as constituting a waiver. And this is especially true where, as in the present case, the participation of counsel for appellee extends through different terms of court.
If, therefore, it is clearly shown by extrinsic proofs that an unqualified appearance in open court was made and action taken or participated in, or rules or orders submitted to by counsel for appellee without interposing his motion to dismiss, we think the waiver should be recognized, though the fact of the appearance, participation or submission does not affirmatively appear by entries in the record proper.
Reversed.