Hunt v. Arkell

13 Colo. 543 | Colo. | 1889

Mr. Justice Hayt

delivered the opinion of the court.

Did the district court err in affirming the judgment of the county court upon appellees’ motion? This is the sole question presented for our determination.

The appeal from the county court not having been taken on the day upon which the judgment was rendered, the appellant, by the terms of the act regulating appeals in such cases, was required to serve upon the appellee or his attorney a written notice of his appeal within five days after the same was taken. And it is further provided that, in case of failure to serve such a notice within the time specified, the appellee may, at his option, have the judgment affirmed or the appeal dismissed by the district, court at any time before such notice is in fact served. Ho attempt was made to comply with the provision of the statute in reference to notice. No notice, written or otherwise, was served within five days after taking the appeal, nor at any subsequent time; and the appellees having elected to ask for an affirmance of the judgment, the district court was required, by the terms of the act, to grant their motion made for that purpose.

Counsel claim that the filing and approval of the appeal bond by the court, in the presence of appellees, constitutes a sufficient compliance with the statute; and in support of this position the case of Capehart v. Biggs, 90 N. C. 373, is cited. The provisions of our statute are, however, entirely dissimilar from those under which that case was decided; the only provision of the North Carolina statute in reference to notice, so far as we are advised, being that the appellant should cause his appeal to be entered on the judgment docket, and notice thereof given to the opposite party. The manner of giving such notice was not prescribed; and as the appeal was taken in open court, the appellee was held chargeable with notice thereof, and no further notice was required. On the contrary, with us the notice must be in writing, and the duty of the district court, in case of failure of the appellant to give the notice, is defined; and the court certainly committed no error in obeying the mandate of the law. If the statute is a harsh one, the remedy lies with the legislature, and not with the courts. It is for the latter to determine what the law is, and not what it should be. The judgment of the district court must be affirmed.

Affirmed.