13 Colo. App. 385 | Colo. Ct. App. | 1899
This was a suit under the forcible entry and detainer act, begun before a justice of the peace. The object was to recover possession of certain real property, which it was claimed that the defendant held under lease from plaintiff, and was holding over after forfeiture for nonpayment of rent. The defendant filed no answer, and the justice rendered judgment against him that the plaintiff have restitution of the property, and recover from defendant the sum of 114.00 as rent due on the premises, and the costs of suit. Defendant appealed to the county court, and after the record
Section 17 of the forcible entry and detainer act, adopted in 1885, provides for appeals in actions of this character, and directs the nature of appeal bond which shall be filed. Laws of 1885, p. 229; Mills’ Ann. Stats, sec. 1987. The succeeding section provides that in addition to giving the undertaking required by the preceding section, if the defendant be appellant, he shall deposit with the justice the amount of rent found due and specified in the judgment of the justice, and that if he fail to do so, the appeal shall be deemed and taken as not being perfected, and proceedings as upon such judgment shall thereupon be had accordingly. Under this provision it is clear that this deposit of the amount specified in the judgment as being due should be made with the justice, and, if there is a failure to do this, it would seem to be the duty of the justice not to allow the appeal, and to proceed to the execution of his judgment. In this case, therefore, if there was a failure to make the deposit as alleged, and the justice erroneously allowed the appeal, it would appear that the proper remedy of the plaintiff in the appellate court was to move to dismiss the appeal. The county court would have no authority for such reason to enter up its judgment affirming the judgment of the justice court. This same section further on provides that when the suit is pending in the appellate court, if the defendant shall fail to make any deposit in that court of rent falling due at the time or times specified in the judgment of the justice, and after the rendition of such judgment, then, upon motion of
It is claimed, however, that the motion having called attention to the fact that the appeal had never been perfected in accordance with the requirements of the statute by the failure of the defendant to deposit in court the amount of the. judgment rendered against him by the justice, the county court was wholly without jurisdiction, — that it was its duty sua sponte regardless of plaintiff’s motion, its form or phraseology, to have dismissed the appeal, and that all subsequent proceedings and orders therein were void. The statute is express and positive in declaring that in actions of this character, no appeal from the justice can be perfected without the defendant first depositing with him the amount of the judgment which has been rendered against him. There is not any doubt or equivocation about the language. The deposit is expressly made a condition precedent to appeal, and without this, there can be no appeal. As was said by this court in Getty v. Miller, 10 Colo. App. 334, which was also a case arising under the forcible entry and detainer act, “ The appellate court has no jurisdiction of the case unless it receives it in the manner provided by the statute; and if the appeal is not in conformity with the law, any order which the court may make in relation to it is void, except an order dismissing the appeal.” We adhere to this opinion, and must therefore declare that in the case at bar there was never an appeal taken to the county court, and that it was without jurisdiction.
For this reason the judgment must be reversed, with instructions to the county court to dismiss the appeal.
Reversed.