Pennington v. McNally

11 Colo. 557 | Colo. | 1888

Stallcup, C.

The statute under which the appeal in question was taken provides that appeals may be taken from all final judgments of the county court to the district, court; that, in cases where the judgment appealed from shall have been rendered for the payment of money, the party desiring such appeal shall, within a reasonable time, to be fixed by the court, give a good and sufficient bond in double the amount of such judgment, to be approved by the judge or clerk of said court; and that the proceedings in the district court upon such appeal in all respects shall be de novo. Secs. 199, 500, Gen. St. Prom the record here, it seems that some order for an appeal had been applied for at -the time the judgment was given. It is argued here for defendant in error that the time within which to file the bond for appeal had been fixed, bv the order then made, at ten days, and that therein the court had exhausted its power touching the appeal. We do not think that the power of the court in this regard was thereby exhausted or terminated. It appears that both the orders made by the county court touching the appeal were made during the term. By the statute, the county court was vested with the power to fix a reasonable time in which to file the bond for appeal to the district court. That power could be exercised at any time during the term. McFarland v. McFarland, 4 Bradw. 157; Borden v. Houston, 2 Tex. 594. By the statute, the plaintiff in error was entitled to an appeal to the district court by filing his bond therefor within the time fixed by the county court. Generally the proceedings of courts are to be considered in fieri, until the close of the term at which they were rendered. Hence the court may change or modify its proceedings in order to promote the due administration of justice, upon proper application therefor during the term. Layman v. Graybill, 14 Ind. 166; Ex parte Casey, 18 Fed. Rep. 86; Owen v. Going, 7 Colo. 85. It is argued here that, as the record is silent as to whether the defendant in error had notice of the application made to the county court for an order fixing longer time within which to file the bond for appeal, we should conclude that no notice had been given for such application; but the decisions of this court are to the contrary. Martin v. Force, 3 Colo. 199; Gomer v. Chaffe, 5 Colo. 383; Hughes v. Cummings, 7 Colo. 138. The appeal appears to have been duly taken from the county court, and the district court erred in dismissing the same. The judgment should be reversed.

De France and Rising, GO., concur..

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment of the court below is reversed.

Reversed.