Straat v. Blanchard

Mr. Justice Elliott delivered the opinion of the court. The uncontroverted facts appearing of record in this case may be summarized as follows: On August 27, 1887, judgment was rendered by the Lake county court; and on the same day, in open court, appellant gave notice of appeal to the district court. On September 3d, by agreement of parties, the court allowed appellant twenty days in which to file his appeal bond. On September 22d the appeal bond was filed and approved in the clerk’s office of the county court. On September 29th the transcript of the case was filed in the clerk’s office of the district court. On September 30th counsel for appellee served appellant with written notice that they would on October 3d move the district court to “affirm the judgment heretofore rendered in said cause, for the reason that no notice of an appeal has been served on the plaintiff or his attorneys, as by law required.” On the same day, September 30th, but not until after the foregoing notice had been served, counsel for appellant served appellee with notice that the appeal in said cause had been “taken and perfected.” On October 3, 1887, the motion of appellee, being submitted to the district court, was, upon due consideration, sustained, and the judgment of the county court affirmed. To reverse this judgment this appeal is prosecuted. The questions presented by this appeal involve the further consideration of the act relating to appeals from county to district courts. Sess. Laws 1885, p. 158. In Hunt v. Arkell, 13 Colo. 543, and in Law v. Nelson, ante, p. 409 (decided at this term), section 4 of said act has been construed in relation to the facts and circumstances of [447] those cases. In those cases it was contended that the appeal should be considered “taken,” so as to dispense with the written notice, when the record shows that the appeal was prayed and allowed on the same day on which judgment was rendered. In this case the contention is that the appeal should not be considered “taken” until the transcript from the county court is actually filed in the district court. Hence, it is argued that the five days in which appellant had to serve the written notice under the statute did not begin to run until September 29th. In other woi-ds, that no notice was required to be given, so long as some act remained to be performed in connection with the taking of the appeal. A brief consideration of the object of the statute will show that the contention of appellant in this case is as untenable as in the former cases. The object of the statute was to mitigate the evil of dilatory appeals. It does not follow, because an appeal is prayed and allowed, that the same will be taken or perfected. The filing and approval of the appeal bond suspends the rights of the prevailing party in the county court, and gives the district court jurisdiction. Hence the notice is required to be given, not before, but immediately after, the filing and approval of the bond; that is, when the appeal begins to operate adversely to appellee, so that he can without delay take such steps as he deems proper to dispose of the appeal. To hold that the notice need not be given until the transcript be filed in the district court would be to perpetuate and augment the very evil which the statute was designed to remedy. We see no reason to doubt the correctness of the former decisions that the time when the appeal is to be considered taken, within the meaning of section 4 of the act, is when the appeal bond is approved and filed. It is further contended by counsel for appellant that, since notice in writing, stating that the appeal had been taken, was actually served upon appellee before he obtained the judgment of affirmance, he was not entitled, [448] according to the literal terms of the statute, to have such judgment rendered. If the statute be thus construed, the consequences would be that no appellee would be able to assert his rights thereunder, unless allowed to do so without giving notice; for the reason that every appellant, upon receiving notice of the intended application for judgment of affirmance or dismissal, would be able to give the written notice required by section 4 before the judgment of affirmance or dismissal could be rendered. Such a construction would nullify the statute altogether, or it would involve the absurdity that a judgment of affirmance or dismissal, obtained ex parte, is less vulnerable than one rendered upon due notice. The statute under consideration does not require the previous filing of a written application to dismiss the appeal or to affirm the judgment; but the code does require the previous service of a written notice of such application. Cates v. Mack, 6 Colo. 401. Hence, if appellee gives such notice and follows it tip with diligence, a subsequent notice by appellant that the appeal has been taken will not be allowed to defeat the statutory rights of appellee; but his application will be regarded as having been made when he took the first necessary step by the service of the notice to that end. The statute may be a harsh one, as counsel say, but an appeal is the creature of positive law. It is a special privilege, subject to statutory regulations; and those who invoke the benefit of the statute must strictly and diligently pursue its requirements or they cannot enjoy the privilege. Vigilan■tibus, etnon dormientibus, servat lex. The judgment of the district court is affirmed. Affirmed.