10 Colo. App. 331 | Colo. Ct. App. | 1897
delivered the opinion of the court.
This action was commenced by the appellee against the appellant before a justice of the peace to recover the possession of certain premises which the defendant, as alleged, unlawfully withheld from her. The justice rendered judgment in her favor for the possession of the property, and damages for its detention.' The defendant then undertook to appeal from the judgment to the county court, by filing with the justice a bond conditioned for the due prosecution of the appeal, the payment of costs accrued and to accrue, as well as all damages the plaintiff had sustained or might sustain in consequence of the wrongful detention, and the payment of whatever judgment might be rendered by the appellate court on dismissal or trial. In the county court the plaintiff moved to dismiss the appeal for the reason that the bond given was not a compliance with the statute, and did ‘not entitle the defendant to an appeal. The court overruled the motion, without prejudice to its renewal, if the defendant should fail within six days to file an additional undertaking, in a penal sum fixed by the court, conditioned according to law, with sufficient sureties, to be approved by the judge of the court. Within the time named the bond was filed and approved by the judge. Afterwards upon the production of a writ of certiorari, issued out of the district court, and a judgment of that court ordering a dismissal of the appeal, the county court revoked its former order, and entered judgment dismissing the appeal.
The contention in behalf of the plaintiff is that the bond upon which the appeal was taken, did not confer jurisdiction of the cause on the county court, that therefore its order permitting the filing of an additional bond was void, and that its final order dismissing the appeal was the only one it was authorized by law to make in the case. For the defendant it is not disputed that the appeal was invalid. His counsel declines to discuss the question of its validity. His sole ground for a reversal is that the district court had no ju
By section 17 of an act approved April 10,1885, concerning forcible entry and detainer, an appeal bond to be given by an appealing defendant is provided for. The bond which the defendant first gave is in substantial conformity with the requirements of that section. Section 22 of the same statute provides, inter alia, that in cases of appeal from judgments upon causes of action embraced in subdivision 4 of section 3, the deposit of rent money-during the pendency of the appeal shall be made, or judgment of affirmance must be entered. Session Laws, 1885, pp. 229, 230. Subdivision 4 of section 3 relates only to cases of forfeiture by tenants for nonpayment of rent. Session Laws, 1885, p. 224. This is not a case of that kind, and section 22 would be unimportant, and would pass unnoticed, were it not that it was subsequently amended, and mention of it is necessary as introductory to the amendment. By an act approved April 13, 1891, that section was amended so as to read as follows:
( “* * * And in the cases of appeal, from judgments founded upon causes of action embraced in subdivision four
The bond required by the foregoing amendment was not filed with the justice ; and it was never filed, except after-wards in the county court in pursuance of permission given by that court. Now it seems clear to us that the intention of the statute is that the giving of this bond or undertaking is a condition precedent to the appeal. By the statute concerning forcible entry and detainer, suits arising under it may be brought originally either before justices of the peace or in courts of record; and the act we are considering provides that the justice or court rendering the judgment shall fix the penalty of the undertaking, and shall also approve the undertaking, and it must be filed with that justice, or in that court. No authority is given to the appellate court to approve it, or fix the sum in which it shall be given, or permit its filing. It is given to secure an appeal, and in order that there may be an appeal, the method which the statute prescribes must be followed. The appellate court has no jurisdiction of the case unless it receives it in the manner provided by the statute, and if the appeal is not in conformity with the law, any order which the court may make in relation to it is void, except an order dismissing the appeal.
From what we have said it will be readily seen that we do not regard the proceeding in certiorari as of any importance. The only question which this appeal presents, or could possibly present, is not affected by it. We cannot review it, because it is not before us for such purpose. We may say however that if the district court had authority of law to render a decision in the proceeding, that decision was binding on the county court; but if on the other hand it was unwarranted, as being outside of the powers of the district court, still as it called the attention of the county court to its own want of jurisdiction, the latter court only did its duty in acting instantly on the information received. Whatever may be the merits of the defendant’s contention concerning the regularity of the proceedings of the district court, the dismissal of the appeal by the county court was right, and its judgment must be affirmed.
Affirmed.