Ernst v. Eldred

278 P. 593 | Colo. | 1929

ACTION in mandamus, brought by Ada Ernst in the district court, to compel the judge and acting clerk of the county court of Fremont county, to issue execution on a judgment theretofore obtained in said county court. The cause is here for the second time. Ernst v. Eldred,80 Colo. 425, 252 P. 357. It was reversed and remanded, with directions to overrule the demurrer to the alternative writ and proceed with the case. The district court obeyed our direction, issues were joined, and the cause proceeded to trial. The court found that certain personal property involved had been returned to Mrs. Ernst after the judgment in the county court, and before the commencement of the mandamus proceedings in the district court. Judgment was accordingly entered in favor of respondent Eldred and against petitioner Ernst, that the latter take nothing, and that the alternative writ be dismissed, which was accordingly done. Mrs. Ernst brings error and has applied for a supersedeas.

[1] Eldred's counsel has filed a motion that the writ of error be dismissed, on the ground, among other things, that it was not brought within one year from the rendition of the judgment complained of, as required by our rule 18.

As much of the rule referred to as is applicable to the present motion, reads, "A writ of error shall not be brought after the expiration of one year from the rendition of the judgment complained of: * * *"

Judgment was rendered on July 8, 1927. The writ of error was brought on March 30, 1929. It follows that the motion to dismiss is well taken, and it will be granted. Snider v. Ostrander, 62 Colo. 99, 100,160 P. 195.

Other reasons are assigned for dismissal, but it is unnecessary to discuss them.

Writ dismissed.

MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE ALTER and MR. JUSTICE CAMPBELL concur.