204 P.2d 1080 | Colo. | 1949
Lead Opinion
INITIALLY, this was an action by defendant in error Denver Publishing Company before a justice of the peace, against plaintiffs in error, on a claim for advertising. On trial the publishing company enjoyed judgment in the sum of $215.94, with costs.
[1, 2] Since justice of the peace courts are not courts of record, the judgment of any such court is not *465 reviewable on error. Whatever the judgment of a justice of the peace in any given case, and regardless of the procedure adopted or employed by the justice in the course of his consideration of the problems involved, the remedy of an aggrieved party therein is by appeal "to the county court of the same county." '35 C. S. A., c. 96, § 140. Such appeal must be taken "within ten days from the rendition of the judgment," and within the same period the party seeking to appeal must "enter into bond, with security to be approved," etc. "Within twenty days from the date of the approval of his appeal bond [he must], pay to the clerk of the court to which he takes an appeal, all fees necessary to have the cause docketed and placed on the calendar of said court." § 141, Ibid. Plaintiffs in error did not invoke the foregoing sections of the statute within the time so limited, or at all. Instead, they proceeded in the district court, under the provisions of sections 132 and 134 of the same act, and sought trial de novo through petition for writ of certiorari. They made plaintiff in the justice court and the justice of the peace who gave the judgment, parties defendant. In the petition, and their brief here, they submit allegations and claims of what they denominate erroneous acts of the justice of the peace. To their petition for certiorari in the district court, defendants there, appearing separately, and by different counsel, challenged the sufficiency of the petition by appropriate motions, and moved its dismissal. The motions were granted, and costs were adjudged in favor of defendants.
Plaintiffs docketed the case here and writ of error was issued. We granted supersedeas on condition that bond in the sum of five hundred dollars be filed, which was done. Plaintiffs in error, instead of filing their brief on or before February 5, 1949, the time fixed therefor, and without applying for additional time, or leave otherwise, filed it February 9, 1949. Based on the delayed filing, defendants in error, proceeding separately, as in *466 the district court, moved dismissal here. The record considered, we might well, and justly, act favorably on those motions, and clear our docket of the case; but since plaintiffs in error, seemingly proceeding in great earnestness, has presented their views on the sufficiency of their petition for certiorari — adjudged insufficient below — we have concluded to ignore the lapse of plaintiffs in error in filing their brief, and, not awaiting or requiring briefs from defendants in error in opposition to that of plaintiffs in error, proceed at once to examine the petition on the merits.
[3, 4] Clearly, as we think, the sections of the statute already cited considered, it was the legislative intent that an aggrieved party in a justice of the peace case, wishing to challenge a judgment given there, should take an appeal directly to the county court. It is true that section 132 of the act does authorize judges of the district and county courts to grant writs of certiorari, but that an aggrieved party may make avail of that authority, it must be shown that in relation to the judgment of which complaint is made, "it was not in the power of the party [complaining] to take an appeal in the ordinary way." '35 C. S. A., c. 96, § 135. The certiorari "statute is designed for exceptional cases, and gives this additional remedy * * * to those, and those only, who fairly come within its provisions. The law, in general, requires at least ordinary diligence of those who claim its protection, and especially of parties litigant. But it is said that before a party is entitled to the benefit of the writ of certiorari, under the section of the law in question, he must `use something more than ordinary diligence to perfect his appeal' in the ordinary way." Austin et al. v. Bush,
Let the judgment be affirmed.
MR. JUSTICE HOLLAND does not participate.
Addendum
On Petition for Rehearing.
[5] We regard the petition as without merit. As to the first point thereof, and only to that are we warranted in pausing for comment, it is contended that appeal did not lie to the county court, perforce, as said, "the amount involved exceeded $3000.00." The imposing sum mentioned represents the amount of the claim sought to be interposed by defendants, not the amount of plaintiff's claim in the justice court, which was less than $300.00. Where a plaintiff's claim in a justice of the peace court does not exceed $300.00, the justice has jurisdiction of the case, and interposition of a counterclaim or setoff for an amount in excess of the justice's jurisdiction does not operate to defeat plaintiff's right to sue in that forum. Otherwise expressed, the amount for which a defendant asks judgment under a counterclaim against plaintiff in the latter's action in a justice of the peace court must be within the jurisdiction of that court. Ramer v. Smith,
The limitation of the jurisdiction of justices of the peace to causes not involving an amount in excess of three hundred dollars, applies to both plaintiff and defendant, and where, as here, the latter alleges a counterclaim in excess of the jurisdictional amount, it leaves only the plaintiff's claim for determination. Agate Irrigation Land Co. v. Sigman,
Let the petition for rehearing be denied.