Hurd v. McClellan

13 Colo. 7 | Colo. | 1889

Mr. Justice Elliott

delivered the opinion of the court.

This is an appeal from an order under the act of April 23, 1885. The act provides that the cause shall be submitted to the supreme court upon printed abstracts of the record, setting forth so much thereof as may be necessary to a full understanding of the question presented for decision, and no more. The act further provides for additional and amended abstracts in case the parties differ as to the correctness or sufficiency of those already supplied. In this case only one abstract has been filed, and no exceptions thereto have been taken.

We do not deem it incumbent upon this court to look beyond the abstract of the record filed herein for the purpose of determining this controversy; nor do we feel at liberty so to do. The statute requires the cause to be submitted upon the printed abstract. Giving this abstract a reasonable construction, what does it show ? It shows the dismissal in the supreme court of a case between parties of the same surname as the parties to this appeal; a remittitur from the supreme court filed in the district court; the issuance and service of a writ of possession in favor of Hurd; an order on motion of McClellan for the recall of the writ of possession and for the issuance of a writ of restoration in favor of McClellan; and an appeal from the latter order by Hurd. The bill of exceptions, apparently between different parties (De La Mar v. Hurd et al.), shows that the order appealed from was based upon certain proceedings remaining of record in the district court of Lake county, and also upon the supreme court remittitur aforesaid; but neither the contents, substance nor subject-matter of such district court proceedings or supreme court remittitur are disclosed by this appeal. So far as appears the remittitur was regularly issued and filed in the district court, and thus the jurisdiction of the supreme court over the case ceased, and the jurisdiction of the district court re-attached. Legg v. Overbagh, 4 Wend. 188; Blanc v. Bowman, 22 Cal. 24.

Even if we were at liberty to take notice of the “Case of Hurd v. McClellan, dismissed in supreme court,” no number or definite title thereof is given by which we might identify the same with certainty. There is not sufficient in this record by which we can determine whether or not the order appealed from was in any manner erroneous. The appeal is therefore dismissed without any express affirmance of the order, and the cause remanded.

Appeal dismissed.