Fischer v. Hanna

Mr. Justice Goddard delivered the opinion of the court. The right of appellants to maintain this appeal is attacked upon several grounds. First, because The Chicago Lumber Company was not a party to the record in the court below, and because the judgment appealed from is a personal judgment against Wiliam Lockhart Smith, and not against the appellants, or either of them. We think that upon both grounds the objection is well taken. It is well settled that to enable one to prosecute an appeal or writ of error, he must be a party to tbe record in the trial court. Ex parte Cutting, 94 U. S. 14; Ex parte Cockcroft, 104 U. S. 578; Guion v. Liverpool, L. & G. Ins. Co., 109 U. S. 173; Reid v. Quigley, 16 Ohio, 445; Bayard v. Lombard, 9 How. (U. S.) 530; Payne v. Niles, 20 How. 219; People ex rel. v. James Lynch, 54 N. Y. 661; Davis County v. Horn, 4 Greene (Iowa), 94; Fleming [12] v. Mershon, 36 Iowa, 413; Powell on Appellate Proceedings, p. 374. In the cases cited by counsel for appellants announcing a different rule, the courts had under consideration statutes that expressly gave to “ any party aggrieved by the judgment ” the right to appeal. Our statute contains no such provision, but enacts as follows : “Appeals to the supreme court from the district * * * courts shall be allowed in all' cases where the judgment or decree appealed from be final, and shall amount exclusive of costs, to the sum of one hundred dollars. (Since establishing the court of appeals the amount must exceed the, sum $2,500.) * * * Provided, the party praying for such appeal shall by himself, or agent, or attorney, give bond,” etc. Section 388, Code 1887. In the case of Reid v. Quigley, supra, the court, construing a like statute, uses the following language: “ This is the only law which gives an appeal in any case, and this only enables the party to appeal from a judgment of an inferior court to the supreme court. This authority is given to the party to the judgment, and to no one else. Third persons are not authorized to act by the law, nor would good policy allow them to interfere and remove causes, by appeal. It is manifest that such a practice could not be tolerated, as it would produce many evils, and be subversive of private rights. ” Whatever may be the right of The Chicago Lumber Company to have this judgment reviewed in the name of The Colorado Savings Bank, its assignor, in the court of appeals, it clearly has no right, of its own motion, to make itself a party to the proceeding and prosecute an appeal in its own name. But it is insisted by counsel for appellants that the foregoing objections do not apply to Ferdinand C. Fischer, since he was a party to the record as defendant. If it may be held that Fischer still has an appealable interest in the judgment complained of, notwithstanding the claims represented by him, as trustee, have been assigned to The Chicago Lumber [13] Company, and it, the beneficiary of such trust, has received the proceeds realized from a sale of the trust property, still the decree against him is-not of the character requisite to sustain an appeal to this court. It appears from the record that he and The Colorado Savings Bank demurred to intervenor’s petition, which demurrers were overruled, and they appear to have elected to stand by their demurrers, since they filed no further pleading in the case. The right to review the judgment of the court below overruling those demurrers is clearly not in this court, and the decree in itself is not, in fact or form, a decree against him for a money judgment, but is to the effect that he had no interest to contest interven or’s claim, and that the lien represented by him was subsequent and subordinate to that of intervenor. This in no sense constitutes a decree that he may appeal to this court, whatever may be his right to obtain a review of the same in the court of appeals. That the judgment appealed from must be against the party appealing is settled by former decisions of this court. Hall v. The Pay Rock C. M. Co., 6 Colo. 81; Todd v. De La Mott, 9 Colo. 222. The parties therefore to this record entitled to an appeal to this court are William Lockhart Smith, against whom a personal judgment for a sufficient amount to give this court jurisdiction was rendered, and perhaps the receiver, since the decree compels him to pay the judgment out of funds in his hands. Hinckley v. G., C. & S. R. R. Co., 94 U. S. 467. Counsel for appellants recognized that a money judgment against the party appealing was essential, since by the recitals in the condition of the appeal bond it is made to appear, .contrary to the decree, that the intervenor obtained judgment against the appellants for the sum of 15,713.66, and in terms obligates them and their sureties to pay such judgment, in case of affirmance. That this statutory condition cannot be enforced against them is clear, since it “ can only apply where the party [14] against whom the judgment is rendered is the appellant.” Hall v. The Pay Rock C. M. Co., supra. It is unnecessary to notice the further grounds presented, as the motion to dismiss the appeal must be sustained for the foregoing reasons. Appeal dismissed.