50 Colo. 365 | Colo. | 1911
delivered the opinion of the court:
The object of proceedings on certiorari is to- correct errors of law apparent from the record, as certified in obedience to the writ, and not to settle those which are disputed. It is upon such record alone that the cause is determined in the superior tribunal, and original evidence is not admissible. — Peo
The statutes relating- to appeals from the county to the district court provide that an appeal will not lie from a judgment by default, unless within ten days after its rendition application be made by the party aggrieved to set it aside,, and such application is refused. They further provide that the appeal must be taken within ten days after the judgment is rendered, or when judgment is rendered by default, within ten days after the refusal to set aside the default and grant a-new trial unless the court, within the time above limited, shall extend the time for an appeal. The undertaking on appeal must be filed and approved within the time an appeal may be taken, or within such further time as the court may fix. — Secs. 1536-1537, Bev. Stats. Whether or not the motion to dismiss the appeal should have been sustained, depends upon what the record discloses as certified from the county court.
Granting that the judgment of the county court was a judgment by default, and that an application to vacate it was necessary as. a condition precedent to praying an appeal, then, although such an application was filed within the statutory period, the defendant did not pray for an appeal within ten days after the application to vacate was denied, nor did the court extend the time in any way for taking an appeal. The second motion to vacate was filed too late, and the prayer for, and allowance of, an appeal, when this motion was denied, were, therefore, of no avail. If the appeal could have been taken without a motion to vacate, the defendant did not avail 'itself of this right within the period fixed by the .statutes. Statutes limiting the time to appeal are mandatory and jurisdictional, and a party desiring to. avail himself of the right to a trial de
A final judgment is one which ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do' in order to determine the rights of the parties thereto involved in that suit. — Dusing v. Nelson, 7 Colo. 184; Hagerman v. Moore, 2 Col. App. 83; 3 Words and Phrases, 2776.
The contention of plaintiff was, that the appeal should be dismissed. When .this was denied, and plaintiff refused to further prosecute, there was nothing left for the court to do other than to dismiss his action. This judgment ended the case, and was. final. — Corning Tunnel Co. v. Pell, 4 Colo. 184.
The county court and the sheriff were made parties to the certiorari proceedings, and it is contended that the dismissal of the complaint did not dispose of the case as to them. We think it did. Neither of these parties had any further interest or concern in the ease after.it was dismissed. No. issue of law or fact affecting their rights was left undetermined..
The judgment of the district court is reversed - and the cause remanded, with directions to dismiss' the appeal.
Reversed and remanded, ivith directions.
Chief Justice Campbell and Mr. Justice Hill concur. 1
