1 Colo. 86 | Colo. | 1868
This is an appeal from the judgment of the district court of Gilpin county, and is now before this court on a motion to quash the appeal, for the reason that the appeal was not prayed for in the court below in the time prescribed by the statute.
The appellee in this court, who was the plaintiff below, brought an action of assumpsit in the district court of Gil-pin county against Lorenzo M. Freas. By agreement or stipulation the cause was tried by the court below without a jury; and the court, after hearing the evidence, rendered a judgment against the defendant, and in favor of the plaintiff. This judgment was rendered and entered of record on the 10th day of August, A. I). 1867, and on the same day the defendant, by his counsel, moved for a new trial and filed his reasons therefor. On the 17th day of August, A. D. 1867, this motion was argued and overruled by the court. The appellant then prayed for an appeal which was allowed by the court and the cause on that appeal was brought into this court. ■ The appellee now moves the court to quash the appeal for the reason that it was not prayed for within the time prescribed by law.
The forty-first section of the act of the' legislature, passed 1861 (Laws of 1861, page 285), allowing appeals, provides that the appeal be prayed for within three days after the time of rendering the judgment ©r decree. It is true that on the 10th ‘of August, A. D. 1867, the day the judgment was entered, there was a motion for a new trial, but we think the defendant should at the same time, or within the three days from that time, have prayed for his appeal. There was nothing inconsistent in the two motions. This he did not do. He did not pray for the appeal until after the time allowed by law for such prayer: and the motion is sustained. The appeal is dismissed.
Dismissed.
