14 Colo. 540 | Colo. | 1890
delivered the opinion of the court.
McMichael prosecuted his appeal from a decree rendered against him in the court below. That appeal was dismissed by this court, but no order was entered that such dismissal should be without prejudice to another appeal or a writ of error. Subsequently, and after the expiration of more than thirty days, from the date of dismissal, he sued out the present writ of error, which was by order of the court, and upon the filing of his bond, duly made a supersedeas. The motion now presented is to dismiss the writ of error and discharge the supersedeas.
Prior to the year 1887, the dismissal of a writ of error or an appeal, without express affirmance of the judgment, operated, regardless of the ground relied on, as a nonsuit in the former instance, and as a discontinuance
Section 397 of the present Civil Code introduces a new rule upon this subject. It provides that “ the dismissal of an appeal may, by order of the court, be made without prejudice to another appeal or writ of error.” That is, unless the order of dismissal expressly reserves the right, the judgment stands affirmed, and a further review, either by appeal or by error, cannot be had. This is the obvious design and consequence of the provision; for it would be idle to declare that the dismissal may by order be made without prejudice, if the intention was to allow a second appeal or a writ of error, the order being silent with reference thereto. And since, at least as to district courts, no constitutional inhibition forbids, effect must in the present case be given to the legislative intent. Under the foregoing view the statute before us does not take away the right to a writ of error conferred by section 406 of the same act. Upon entry of the final judgment in any court of record, the unsuccessful party may take his writ. If, however, he elects to present his case by appeal instead, he voluntarily hazards a review by error; such hazard resting upon the contingency that his appeal may be dismissed without the saving clause relating to prejudice.
When an appeal is dismissed without prejudice, appellant’s right to a writ of error at any time within three years from the rendition of judgment remains. See secs. 401, 406, Civil Code. But availing himself of this privilege does not stay proceedings in the trial court pending the review. If he wishes to accomplish this result he must procure a supersedeas; and here again, section 397, above mentioned, introduces an important qualification hitherto unknown to the law. Unless plaintiff in error procures his supersedeas within thirty days after the dismissal, its functions are materially curtailed;
The statutory provision under consideration is in some respects anomalous, but its language is reasonably plain, and the courts may not, by construction, change its effect.
We are obliged to sustain the motion before us. Since the appeal was not dismissed “without prejudice,” the writ of eri’or did not lie. This proceeding is accordingly dismissed, and, in pursuance of such dismissal, the supersedeas must, of course, be discharged.
Writ of error dismissed.
