8 Colo. 542 | Colo. | 1885
Lead Opinion
The questions presented arise upon demurrer to the petition filed in this court praying for a writ of mandamus to compel the respondent, as clerk of the district court of Arapahoe county, to approve and file a certain appeal bond tendered him for approval as clerk aforesaid in an action pending in said district court.
The petitioner sets forth, in detail, that one Lillian B. Daniels, wife of this petitioner, heretofore filed in said district court her complaint praying that a certain agreement of separation of the said Lillian and this petitioner, as husband and wife, theretofore made and entered into by and between said parties, be set aside, for reasons set forth in the complaint aforesaid, and also praying for specific alimony to be decreed the complainant; but not asking for a dissolution of the bonds of matrimony. For further relief, the complainant prayed that a specific sum be decreed to be paid into court by the said William B. Daniels for costs and for attorney’s fees, and a further sum to be paid monthly as alimony to the complainant pendente lite. That about the same time a certain other complaint was filed in said court by the said Lillian,
Upon the facts set out in this petition we allowed the alternative writ, as prayed; counsel stipulating a waiver of the issuance and service of the writ, and that respondent would appear and obey the mandate, by either approving the bond or showing cause on or before a day named. Thereafter, upon the day set for hearing (the respondent Sparnick having in -the meantime deceased, and his successor in office, Arthur. S. Miller, having been substituted as respondent herein), the respondent, by his counsel, appeared; and, instead of obeying the writ, elected to show cause by demurring to the petition on the ground that the facts therein stated were insufficient to warrant the issuance of the writ prayed.
The questions for our determination, upon the issue thus made, depend for solution chiefly upon the terms and construction of the late statute (Session Laws 1885, p. 350), entitled “An act in relation to appeals to the supreme court, and concerning the jurisdiction thereof and practice therein.” The principal question involved is whether the clerk of the trial court has, under said act, discretionary authority to refuse the approval of an appeal bond, on the ground that the judge of said court has held that the order or judgment from which an appeal is sought is not appealable. Underlying this question, and as a corollary thereto, is the question: Has the trial court itself, or the judge thereof, the power or discretion to refuse an appeal, or determine that an appeal will not lie when sought under the provisions of the act mentioned?
The first section of the act declares that “the supreme court has appellate jurisdiction over all judgments and decisions of all other courts of recoi’d, as well in case of civil actions as in proceedings of a special or independent character. * * *”
Section 8 of the act, providing the manner of takiug appeals, is as follows: “ An appeal is taken by filing with "the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice of appeal upon the adverse party or his attorney.”
Section 9 declares that, “Upon receipt of such notice by the clerk, and proof of service of a copy thereof on the adverse party or his attorney, and the payment or securing of his fees for the transcript hereinafter mentioned, the clerk shall forthwith transmit to the clerk of the supreme court a transcript of the judgment or order appealed from, or so much thereof as is mentioned in the notice; the notice of appeal, and the undertaking in appeal, if any; and so much of the record in the case additional as the appellant in writing may direct. * * * ”
Section 23 is as follows: “An appeal shall not stay proceedings on the judgment or order, or any part thereof, unless the appellant shall cause to be executed before the clerk of the court which rendered the judgment or order, by one or more sufficient sureties, to be approved by such
The portions of the statute above quoted we think embrace all the provisions therein which bear upon the questions before us.
Among the radical changes which this statute makes in the practice concerning appeals, it will be observed that no bond is required in taking an appeal unless a stay of the judgment or order appealed from is desired. It is also noticeable that the court or judge has nothing to do in the matter of taking the appeal. Indeed, except in the cases provided for in section 24, where the appellant stands in a fiduciary capacity, or is a municipal corporation, neither the court nor judge has any function to perform in connection with the appeal, unless when the judge may be called upon by either party litigant to fix
It was argued by counsel for respondent that this provision that the judge may fix the amount of the bond is to be construed as mandatory in cases where the judgment or order is not for such specific sum as that it may be doubled in the bond; but we are inclined to hold, in view of all the provisions of the statute relating to the taking of the appeal, that the provision in question is directory, and, as we have stated above, permits the parties, or either of them, to elect to call upon the judge for such purpose. Let us see how the law as thus construed would operate. Suppose that, in any case in which this provision is applicable, the appellant chooses to fix the amount of the bond without requesting the judge therefor. If the appellee is dissatisfied therewith, he is at liberty to present a showing to the judge as a reason why the amount of the bond should properly be fixed by such judge. If the appellee takes no steps for such purpose, he may properly be deemed to have no objection, or to have waived objection, to the course pursued by the appellant in the matter. Afterwards, when the appeal has been taken, the appellee has a right, under section 25 of said act, to move, in the appellate court, against the bond, if considered defective or the sureties insufficient. These provisions appear reasonable, and calculated to insure fairness to both parties. On the other hand, if the provision that the judge may fix the amount of the bond were to be construed as mandatory in such cases, and such judge should neglect or refuse to act therein, a difficulty would result which would not be entailed by the other construction we have adopted.
It was strongly contended by counsel for respondent in
“And having filed the notice of said appeal with the clerk of said court, and having served the plaintiff’s attorney with a copy thereof, said defendant applied to the said court to fix the amount of the appeal bond to be given; which application the said court refused, and declined to fix the amount of said bond, holding that no appeal would lie from the aforesaid order, or any part thereof; to which ruling of the court the defendant also, by his counsel, then and there excepted,” etc.
From which it will be seen that this “ruling” of the court is recited in the bill of exceptions merely as a reason which the judge himself gave for refusing to fix the amount of the bond; and, according to the indorsement of the clerk on the bond, the sole reason for the refusal of the clerk to approve the bond was because he “interpreted” the order of the court in the matter “as declaring the case to be one which does not permit an appeal,” and not for any defect or insufficiency of the bond itself.
It is conceded that mandamus will lie to compel an officer to act only when it is his plain duty to act in the manner prayed for. The question here, then, to be first considered is, was it the clear duty of the respondent to approve the bond tendered in this case?
The bond being good and sufficient, as is admitted, and mot being absolutely required to have the amount therein first fixed by the court or judge, as we hold, and the other prerequisites for taking the appeal having been complied with, under the statute, we think it became and was the clear duty of the respondent to approve and file the bond, ' and to issue the order for stay thereon accordingly, unless the reason for his refusal given by him, as indorsed on the bond, was a sufficient reason for such refusal. This "brings us to consider the question whether the ruling or
It was urged in argument by counsel for respondent that mandamus will not lie to control or interfere with the judgment or discretion of an officer in the performance of an official act, and that in this case, whether it be the act of the court or clerk which is to be affected by the writ, the above principle of the law of mandamus is applicable. Aside from the question of its applicability to this case, the soundness of the doctrine thus announced is unquestioned; and it has been so laid down by this court repeatedly heretofore as a first principle in the law governing the issuance of this writ. But whether there was authority for the exercise of discretion by the judge or clerk in this case is the very question before us to determine. Upon full consideration of the statute under which the appeal in question is taken, and viewing all its parts, with respect to the purpose and intent, as a whole, we are constrained to conclude that it is not within the province or authority of the court or trial judge to determine, for the purpose of preventing an appeal, that a given judgment or order rendered or made by such court or judge is not appealable. The statute itself, in the first two sections of the act, declares in what cases appeals will lie to the supreme court, and this enumeration was doubtless intended to furnish a sufficient guide to both bench and bar. A comparison of the manner in which appeals are taken under this new act with the mode prescribed by the former law will serve to throw light on the legislative intent contemplated by the change. The former law (section 415, Code 1883) required the appeal to be prayed for within a certain time
The chief requisites in a petition to warrant the issuance of a writ of mandamus are — First, the petitioner must show a legal right to have the act done which is sought by the writ; second, it must appear that- the act which is to be enforced by the mandate is that which it is the plain legal duty of th'e respondent to perform, without discretion on his part e.ither to do or to refuse; third, that the writ will be availing as a remedy, and that the petitioner has no other plain, speedy and adequate remedy. That the petitioner here has no other such remedy for the purpose of effecting a stay of the judgment and order appealed from is evident from the nature of the case and the provisions' of the statute relating thereto. A writ of error, under our practice acts, will lie only to review a final judgment in a cause, and will not lie to an order in any case, so that the petitioner was without this remedy, if that remedy were even adequate in such a case as this. The only-other remedy suggested by counsel for respondent, in argument, was a suit to l’ecover back the money ordered paid, in case the order therefor should be reversed by the. supreme court; but it is not pretended that this would be a speedy or adequate remedy.
I conclude, therefore, upon the facts set out in the petition, (1) that the petitioner had a legal right, under the statute, to a stay of the judgment and order appealed from, and, to effect the same, had a right to have the bond therefor approved by the respondent as the law directs. (2) That the trial court or judge had no authority to prevent the taking of the appeal, nor to adjudge or order that an appeal did not lie. (3) That neither said court nor judge made any order denying the appeal, oi
The petition being held sufficient, the demurrer thereto is overruled, and the peremptory writ ordered to issue, as prayed. Writ ordered.
Concurrence Opinion
(concurring). I concur with my Brother Stone in the conclusion that, upon the showing made, the alternative writ in this case should be made peremptory for the following reasons:
1. So far as the trial court is concerned, the statute in question confers the right of appeal upon the unsuccessful party absolutely. As to whether or not a review in this way may take place, that court has no voice whatever. When a party has served upon his adversary, by copy, the requisite notice, and. filed the same with the clerk, the appeal is perfected. Nothing then remains to be done by that court or its officers in connection therewith, except for the clerk, upon proof of such service, and tender or payment of fees, to forward the transcript as directed by law.
2. A supersedeas is not essential to the appeal or review. It is an incidental and collateral privilege which
3. Unless I misread or misunderstand the statute, the clerk also has but little, if any, discretion. When a bond is tendered which he admits, as in the case at bar, to be sufficient in every particular, it is his duty to approve and file the same. He cannot be permitted to decline the. performance of this ministerial duty simply because, in his judgment, the order appealed from was not appeal-able. Whether or not an appeal lies in a given case is a judicial question, and if the clerk can decline to approve a bond because he may think the appeal was improperly taken, there is lodged in his hands judicial power. He is enabled to accomplish that which we say the court itself cannot do. He would often prevent appellant’s deriving, the full benefit of a reversal, when one is secured, by depriving him of the stay of execution sought.
Such is the situation here as to the remedy. The illegal action of the clerk is in no way reviewable. Appellant cannot invoke relief in this court by error. Under the .present, as under the former, practice, our writ of error does not issue except to a final judgment; and before proceedings on his appeal could be terminated, the evils appellant sought to avert by supersedeas would be suffered. I do not think that the proceeding mentioned in section 31 of the act, or appellant’s ultimate right of action for damages against an insolvent and worthless judgment creditor, who has sold appellant’s property under execution and placed the proceeds beyond his reach, is such an adequate remedy as will debar the proceeding by mandamus.
5. Such I believe to be a correct interpretation of the statute in question, according to its letter and spirit. But it seems to me that these conclusions are also supported by strong considerations of public policy. -If all the trial courts of the state whose proceedings may be brought here for review were at liberty to say that an appeal did or did not lie, there would .exist great confusion in practice. Under the law a large number of orders are made appealable. As to whether or not an appeal will lie from a particular order may be a close and perplexing question; consequently the various courts in the state would probably take different views of the same or similar orders; and in one section appeals would be allowed where, in another, they would be denied. This suggestion also applies to the clerks’ action in the approval of appeal bonds and allowance of supersedeas. One clerk would decline to approve a bond, upon the ground that the appeal was improperly taken; another clerk would hold the appeal warranted, and indorse upon the bond the requisite sanction.
The proposition that there should be but a single tri
As will be observed, I venture no opinion concerning the appealability of the order referred to in this discussion.
No objection is presented to the bond here tendered on account of the sum named therein as a penalty. Such sum appears to be amply sufficient to more than twice cover all possible liability of relator in the premises. I therefore think, with Mr. Justice Stone, that, under the circumstances, the fact of there being no order of court fixing the amount of the underbaking in no way affects the views above expressed. Sharon v. Sharon, 8 West Coast Rep. 351.
The majority of the bench are of opinion that the demurrer to the petition should be overruled. In this conclusion I concur, but not in the reasoning by which this conclusion is arrived at. My concurrence is based upon a legal proposition of which I entertain no doubt under the present issue, viz., that the order from which this appeal is prosecuted is an appealable order. If it were a non-appealable order, then, in my judgment, the demurrer should be sustained; and I conceive it to be the duty of the court to determine this point before issuing the mandate sought. This . is not simply a question of the construction of a statute, but it involves the ap
Referring to the late statute on the subject of appeals in civil actions, I find it provides, in the first instance, from what judgments and orders appeals to this court may be taken. Neither a party to a judgment nor an officer of the trial court is authorized by that statute to take, any steps toward perfecting appeals, save in the cases made appealable by the statute. Should they, therefore, proceed and perfect appeals in unauthorized cases, this court would be without jurisdiction to entertain them. No litigant can say he has a right to have an appeal perfected, unless that right has been conferred upon him by statute. The statute was enacted for the benefit and' guidance of the people. Like all remedial statutes, it states the cases to which it applies; aud only those entitled to the benefit of its enactments have a legal right to take advantage of .them. It is illogical to say, because a litigant who may be entitled to an appeal is authorized to perform the initiatory steps himself, as the serving of notice of an appeal, that persons against whom judgments or orders not appealable are entered may, by pursuing the same steps, have an appeal to this court. If such a person should succeed in getting the record of a cause transferred to this court, he would have here an illegal proceeding, — one to which he could show no statutory right, — and wholly ineffectual to him as a remedy. To hold otherwise would be to say that, after restricting the'remedy by appeal within certain defined boundaries,
In my judgment such is-not a correct interpretation of the statute under consideration. On the contrary, my view is that all its remedial provisions are limited to the cases wherein appeals are provided for, and to no other cases. And if this be true, then whether a judge be called upon to fix the amount of a bond intended to operate as a stay of proceedings, or a clerk be requested to approve a similar bond wherein the amount of the penalty and the sureties therein are both sufficient and satisfactory, if the case be non-appealable, no legal obligation rests upon either officer to perform the act demanded. The statute is their guide. It is also a guide to all who have duties to perform in relation to the subject-matter of appeals, whether those duties be ministerial or judicial. Ministerial officers have no discretion as to their duly-prescribed duties; but the rule goes no further. If a demand be made upon- them to -perform acts falling outside their duties as prescribed by statute, they are under no' obligation to perform them. The books say that such officers cannot be compelled, by mandamus, to perform-acts not falling within the duties so prescribed. They say-mandamus is the appropriate remedy to enforce the performance of an official duty clearly enjoined by statute; but, to entitle the relator to the writ as against a public officer, he must show a clear right to the performance of
In the application of the foregoing principles to the case before us, the first inquiry is: Has the relator a clear legal right to the performance of the act demanded; that is, to have the supersedeas bond which he tendered approved? If the right exists it is a statutory right, and necessarily depends upon his right of appeal. Believing, therefore, that the order appealed from falls legitimately within the list of appealable orders, and being substantially a money judgment against him, this inquiry must be resolved affirmatively.
Second. Does a clear legal duty exist on the part of the clerk below to approve the bond tendered? It follows from the preceding proposition and answer, from the provisions of the statute, and from the return on the bond, that the predecessor in -office of the present respondent erroneously refused to approve the bond.
Third. Will the writ, when issued, prove effectual as a remedy? It will effectuate all that is demanded: a stay of proceedings in the district court until the order appealed from can be reviewed in this court. This is a sufficient remedy.
Fourth. Is there any other plain, speedy and adequate remedy in the- usual course of law? This is the only
Demurrer overruled.