Walton v. City of Canon

39 Colo. 81 | Colo. | 1907

Chief Justice Steele

delivered the opinion of the court:

The appellee moves to dismiss the appeal for the . reason that an appeal was not prayed within the time required by law. The cause was heard and determined by the county court on March 27, 1906. On ' this day judgment was rendered on the verdict and the defendant given until April 25th following* in which to file a motion for a new trial. On May 19th, a motion for new trial was denied, at which time defendant prayed an appeal to this court. The appeal was allowed, and defendant given thirty days in which to file an appeal bond and ninety days in which to tender a bill of exceptions. On June 22nd, the motion of the defendant to amend the judgment order of March 27th was granted, and the court in his order recited, among other things: “That the verdict was made and entered in said cause on-the 27th day of March, 1906, and that judgment was made and entered upon the verdict in said cause on the said 27th day of March, 1906, and that defendants then and there, on said date, duly made and entered their objections and exceptions to the verdict in said cause, and gave notice of the motion for a new trial in said cause, but from excusable oversight failed to give notice within five days of an appeal to the supreme court. And the court further finding that the circumstances surrounding the failure to give notice of an appeal were such as to justify this court in now entering defendants’ notice and application for an appeal in said cause nunc pro time, as of the said 27th day of March, 1906.”

It was ordered that the appeal of defendants be entered for and as of the 27th day of March, 1906.

No appeal was in fact prayed until the 19th day of May, and appellant relies wholly upon the order made June 22nd to sustain the appeal. Authorities are cited holding that the orders and decrees- of courts are under the court’s, control during the term at which they are rendered, and that they may be set aside or modified as law and justice may require, but such authorities cannot control the questions here presented. Courts have the undoubted power to modify their judgments and orders during the term at which the judgments or orders were rendered, but no court has the power, by the entry of a nunc pro tunc order, to relieve a party of the requirements of a statute. If the defendant had in fact prayed an appeal, but, owing to some neglect or oversight on the part of the court-or the clerk, the record failed to show that an appeal had been prayed and granted, the court might then have properly .entered a nunc pro tunc order to make the records state the truth and to preserve the defendant’s rights; but the court has no right to change its record by a rmnc pro tunc order because of the alleged excusable oversight of one of the parties in not taking the necessary orders. The1 statute recognizes no excuse for failure to take an appeal within five days, and the court is therefore without authority to excuse the defendant. The appeal will be dismissed, with directions to the clerk to enter the cause as pending on writ of error.

Counsel has requested that in the event of the dismissal of the appeal that a supersedeas .be granted. No reason is assigned in the brief for the granting of the supersedeas, and we shall deny the motion for supersedeas, with leave to renew the application.

Mr. Justice Caswell and Mr. Justice Maxwell concur.