Denver & R. G. R'y Co. v. Rader

Rising, C. That the court erred in dismissing said appeal is the only error assigned which is relied on in the argument, and, in the consideration of this assignment, two questions are discussed by counsel: 1. Is the payment [538] of tlie costs of the appeal to the justice personally a condition precedent to the perfecting of the appeal, when the appeal bond is filed in the office of the clerk of the county court? 2. Has the court jurisdiction of the subject-matter of the action, so as to warrant the dismissal of an appeal before a transcript of the proceedings has been filed by the justice in the appellate court % It has been held by this court in Town Co. v. Ives, 10 Colo. 81, that the filing of the appeal bond within the time required by the statute perfects the appeal; and in Schofield v. Felt, 10 Colo. 146, it is held that the requirement of the payment of the costs of granting an appeal is not a jurisdictional pi-ovision. Under these decisions the first question presented must be answered in the negative; and these decisions hold, not only that payment of such costs to the justice personally is not necessary to perfect an appeal, but that payment of such costs is not necessary to perfect an appeal. Sections 1982, 1983, General Statutes, make this proposition very-clear, as to cases in which the appeal is taken by the filing of an appeal bond in the office of the clerk of the county court, and show conclusively that an appeal is pérfected by the filing of .a bond as required by the statute. It must be understood that, in holding that an appeal is perfected by the filing of a bond, we mean that the party appealing has fully performed the statutory requirements which he is called upon to perform when the bond is filed with the justice; but when the bond is filed with the clerk of the court the appeal is not perfected until the service of the summons and supersedeas provided for by statute. When the appeal is perfected in either way, the court has acquired jurisdiction of the parties, and may then proceed to act in the case so far as it is authorized by having such jurisdiction; but it cannot act with reference to matters of which it has not acquired jurisdiction. Under the statutes of Illinois, from which our statutes relating to appeals from justices’ courts were substan [539] tially adopted, it is held that the provisions requiring the justice to return to the appellate court all the papers in the case, and a certified transcript of the judgment, relate to the manner in which the appellate court shall obtain jurisdiction of the subject-matter of the action; and it was further held that, until the court had obtained jurisdiction of such subject-matter, it had no power to dismiss the appeal. Reed v. Driscoll, 84 Ill. 96, 98; Sheridan v. Beardsley, 89 Ill. 477. It is said in Reed v. Driscoll, supra, that defendant in error could, if he had chosen, have filed a transcript of the judgment in the appellate court, and then have made any motion he might choose; and we think this suggests the proper practice to pursue in such cases. Some of the courts of this state have a standing rule of court, providing for the filing of such transcript by the appellee, and for an application for a rule on the appellant to refund the costs of obtaining such transcript, and for a dismissal of the appeal on failure of appellant to pay the same within the time required by the order of the court; and there can be no question but that either party has the right, independent of any rule of court, to file the transcript, and thus give the court jurisdiction over the subject-matter. The court erred in dismissing the appeal, and the judgment should be reversed. De Trance and Stallcup, CC., concur. Per Curiam. Tor the reasons assigned in the foregoing opinion the judgment of the court below is reversed. Reversed.