Long v. Sullivan

| Colo. | Apr 15, 1895

Chief Justice Hayt

delivered the opinion of the court.

The condition of the bond is that the appeal shall be duly prosecuted, and the amount of the judgment of the district court paid, with costs, in.case such judgment shall be affirmed. It is alleged in the complaint that the appeal was dismissed from the court of appeals, and a remittitur issued by that court to the district court. Section 397 of the code provides: “ The dismissal of an appeal may, by order of the court, be made without prejudice' to another appeal or writ or error; but unless another appeal or supersedeas be.taken or allowed within thirty days after such dismissal, the dismissal of an appeal or writ of error shall operate as an affirmance of the judgment of the trial court.” The complaint, which was not filed until April 11, 1892, alleges that the appeal was dismissed by the court of appeals on the 28th day of January, 1892. It is thus shown that more than thirty days had elapsed after the dismissal of-the appeal before the bringing of the present suit, and hence, by the very terms of the statute, the dismissal amounted to an affirmance of the judgment of the district court, and the liability of appellant upon his bond attached, unless it appears that another appeal or supersedeas was taken or allowed within thirty dajs after such dismissal. It was not necessary to allege in the complaint that no appeal had been taken within the thirty days, as this was a matter of defense which should have.been pleaded by the defendant. Whether this appeal was duly prosecuted or not is immaterial, as it sufficiently appears from the pleadings that the judgment of the district court was affirmed, and it would not, therefore, avail the defendant if it be admitted that he prosecuted the appeal with due diligence.

It is contended that section 897 of the code has no application to the court of appeals. This contention is based upon two propositions: First, that the act creating the court of appeals does not in terms attempt to make the section applicable in cases appealed to that court; and, second, that if it does so attempt, the statute is in violation of section 24 of article 5 of the state constitution:

“ Section 24. No law shall be revived, or amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be reenacted and published at length.”

A conclusive answer to the first proposition is to be found in the act creating the court of appeals. This ac.t was passed for the purpose of relieving the overburdened docket of this court. The first section of the act limits the right of this court to review the final judgments of inferior courts in certain cases. Section 2 creates the court of appeals. Section 8 provides for the appointment of the judges. Section 4 for the jurisdiction of that court, and contains, inter alia, the following clause: “Writs of error from, or appeals to, the court of appeals shall lie to review final judgments, within the same time and in the same manner as is now or may hereafter be provided by law for such reviews by the supreme court.” Section 5 makes provision for the transfer of certain cases from the supreme court to the court of appeals; and section 6 requires the court of appeals to adopt rules, but that the same shall be similar to the rules of the supreme court, so far as practicable. These sections of the act show beyond controversy that it was the intention of the legislature to provide a practice for the court of appeals similar to the practice in the supreme court. This conclusion also finds support in those provisions of the act which allow certain cases to be transferred from the supreme court to the court of appeals, and certain other cases to be transferred from the court of appeals to the supreme court. This transfer of cases from one court to the other presents of itself a strong argument in favor of the uniformity of practice contended for by appellee.

Is the act inconsistent with section 24 of article 5 of the constitution ? The section is a part of the Code of Civil Procedure of the state of Colorado, entitled, “ An Act for An Act to Provide a Code of Procedure in Civil Actions for Courts of Record in the State of Colorado, and to Repeal All Acts Inconsistent Therewith.” The act contains 445 sections, and is the general law of this state governing practice in civil cases. If appellant’s contention be sustained, then, every time a new court is created, the entire code must of necessity be reenacted to make it operative in such court, and our already cumbersome statutes would be increased in volume until it would be difficult to ascertain the law upon a given subject. Certainly this ought not to be required, if, under any reasonable construction, a different conclusion can be reached.

If the question were a new one in this state, the hardship and expense that would result from such a conclusion should be given weight; a fortiori must’ importance be given to this in view of the fact that a contrary construction has been indulged by the legislative and executive departments from the inception of the state government, and the practice sanctioned by repeated decisions of this court. To now reverse this practice would destroy the efficiency of many of our courts, and unsettle judgments that have up to this time been accepted without question.

The argument of counsel in this case is the same as that made by him in the case of Denver Circle R. Co. v. Nestor, 10 Colo. 403" court="Colo." date_filed="1887-10-15" href="https://app.midpage.ai/document/denver-circle-r-v-nestor-6561514?utm_source=webapp" opinion_id="6561514">10 Colo. 403. The court then went into an elaborate discussion of the subject, the purpose, object and meaning of the constitutional provision, in an endeavor to show that the position of counsel was not supported by sound reason and found no indorsement in the adjudicated cases. It would be idle to repeat, and of no benefit to attempt to enlarge upon the reasons advanced by Chief Justice Beck, the writer of the opinion in the former case.

The doctrine in that case was not entirely new in this state, as it had previously received the sanction of this court in response to a legislative question. In re Constitutionality of House Bill No. 158, 9 Colo. 625.

The constitution of the state of New York contains a provision in effect the same as the provision invoked in this case. It reads: “ No act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.” Section 17, article 3, Constitution of New York. The court of appeals of that state, in the case of People ex rel. Commissioners v. Banks, 67 N.Y. 568" court="NY" date_filed="1876-12-22" href="https://app.midpage.ai/document/people-ex-rel-board-of-commissioners-v-banks-3606067?utm_source=webapp" opinion_id="3606067">67 N. Y. 568, say:

“ Reference is made to such laws, not to affect or qualify the substance of the legislation or vary the terms of the act, but merely for the formal execution of the law.

“ It would be a serious evil to compel the engrafting upon and embodying in every act of the legislature all the forms and the details of practice which may be necessarily resorted to to carry any one statute into effect, when the same are provided for by the general statutes of the state, and are applicable to hundreds of other cases, and with which the legislators may be supposed to be reasonably familiar. This objection, we think, not available to the defendant.”

The same conclusion was reached in the matter of Application of The Union Ferry Company, 98 N.Y. 139" court="NY" date_filed="1885-02-03" href="https://app.midpage.ai/document/matter-of-application-of-union-ferry-co-3576993?utm_source=webapp" opinion_id="3576993">98 N. Y. 139.

The judgment of the district court must be affirmed.

Affirmed~