Glatzel v. Binschadler

Mr. Justice Goddard delivered the opinion of the court. This action was originally commenced before a justice of the peace. Judgment was rendered for $56.55 and costs. From this judgment defendant appealed to the countjr court. On the trial of the cause in the county court, upon the close of plaintiff’s testimony, a motion for a nonsuit was sustained, and the action dismissed at plaintiff’s cost. This motion does not appear in the record, and we are not advised upon what grounds the same was based, except by a recital in the transcript, as follows: “The plaintiff having given evidence in support of his claim does now here rest his cause of action. The defendant then moved to dismiss his cause of action for the reason that no jurisdiction as to the justice of the peace before whom the suit was originally brought, or as to the jurisdiction of the court, had been proved as demanded by the defendant at the opening of the case; and upon the further [193] grounds that any promise of defendant to pay for the goods sold by plaintiff was void by the statute of frauds; and that there is no proof in this case that the goods sold were used in the family of the defendant and her husband.” Counsel for plaintiff in error insists that the court below dismissed the action for want of jurisdiction in the justice of the peace, and contends that for this reason the court committed a fatal error, since it appeal's from the record that the action was brought upon a money demand in amount within the jurisdiction of the justice, and, if the justice had no jurisdiction over the person of defendant, she had waived this objection by appearing and going to trial, on the merits of the cause, in the county court. There can be no question as to the correctness of counsel’s contention, if it was clear that the court dismissed the action for the reason thus assumed ; but inasmuch as the record is silent as to the specific grounds of the motion, and from the recital above set forth it appears that other grounds were relied on which, if found to exist, would justify the dismissal of the action, to wit, the insufficiency of the evidence to sustain a recovery against defendant, and the evidence not being preserved by a bill of exceptions, we must assume that it’was insufficient, and that the motion for nonsuit was granted for that reason. Parkison v. Boddiker, 10 Colo. 503; Leach v. Lothian, 10 Colo. 439. Upon the record before us, we cannot say that the court erred in dismissing the action, and the judgment will therefore be affirmed. Affirmed.