10 Colo. 535 | Colo. | 1887
Lead Opinion
Francis E. Ingols, plaintiff in error, sued the defendants in error before a justice of the peace residing in the city of Denver, to recover the sum of $40, alleged to be due and owing her for one month’s rent of a house. On the 10th of March, 1883, she recovered a. judgment for the amount demanded, whereupon defendants appealed to the superior court of the city of Denver. Plaintiff’s counsel moved to dismiss the appeal on the ground that the superior court did not have jurisdiction to entertain or try appeals from justices of the peace in civil actions. The motion was overruled by the court,, and case tried to a jury, who rendered a verdict for the defendants.
The ruling of the court on the motion to dismiss said, appeal is made the basis of the first four assignments of error. This raises the question whether the act of the legislature, providing for the organization of superior-courts, approved February 10, 1883, gives to these courts-jurisdiction of appeals from justices of the peace in civil
But counsel argues that superior courts are constructed, by sections 1 and 3 of the act, courts of the same class and grade as the district courts, and that, since the latter courts are not vested with jurisdiction of appeals from justices of. the peace in civil actions, it would render the act unconstitutional to hold that the former are vested with such jurisdiction. Two constitutional objections are specified: First, that the constitutional provision requiring the jurisdiction and practice- of courts „of the same class and grade to be uniform would be violated; second, this construction would give advantageous remedies to citizens of cities and incorporated towns not given to other citizens of the state. The first objection is answered by the case of Darrow v. People, 8 Colo. 417,
Referring now to the errors alleged in the proceedings of the trial in the superior court, and the exceptions taken, it is apparent that the judgment must be reversed for the error of the court in its second instruction. The real controversy was over a counter-claim presented by defendants in error of $33, for a bill of merchandise purchased from defendant George E. Plimpton by one Rollins, son of the plaintiff in error. Defendants introduced testimony tending to prove that plaintiff and her son were partners in business, and that these goods were purchased for their joint use and benefit; that both the plaintiff and her said son had thus represented their business relations to the defendants, and promised them that this bill would be allowed upon the plaintiff’s account for rent. The plaintiff denied the partnership relation with her son, or that any such representations or promises had been made, and the testimony was conflicting as to all these matters. The second instruction is as follows: “If you believe in this case that Mrs. Ingols was the proprietor of that establishment, with her son, of course you will find for these defendants to the extent of that claim; because, if she was the proprietor in fact, I think it will be proper to allow the amount, inasmuch as the bill was tendered receipted, and, as the proof shows, the amount of the balance was tendered in money.” By this instruction the allowance of the counter-claim is made to depend on the belief of the jury that the plaintiff and her son were joint proprietors of the business for
It is unnecessary to consider the remaining assignments. Eor the error in the instruction concerning the counter-claim, the judgment is reversed and cause remanded for a new trial.
Concurrence Opinion
(concurring). I concur, but my conclusion is in nowise based upon the proposition that the second instruction, “standing alone, is faulty in leaving the issue as to the partnership to the belief of the jury, in
Reversed.