Johnston v. Eagle Ore Sampling Co.

Mr. Justice Musser delivered the opinion of the court: This is an appeal from .a judgment for costs, which does' not relate to a. franchise or freehold. [183] Under the circumstances, this court is without jurisdiction to entertain the appeal. More than three years have passed since the rendition of the judgment in the court below. The appellee has made no appearance in this court. If the cause had originally come here on writ of error, this court would not now have jurisdiction of the person of the defendant in error, in the present condition of the case, for no summons to hear errors has .been issued or served, nor has the appellee done anything to waive such issuance or service. Prom all of the foregoing it appears that this cause, in its present condition, is not within the contemplation of see. 388a, Mills’ Ann. Code, which provides that, when an appeal shall be dismissed by this court for lack of jurisdiction, and it appearing that this court would have jurisdiction if the action had come up on writ of error, the action shall be entered as pending on error. As the cause has been regularly reached and this court is without jurisdiction on appeal, and also without jurisdiction of the person of defendant in error, were the action entered as pending on error, nothing remains to be done but to dismiss the appeal.—McVicker v. Rouse, 44 Colo. 255, 98 Pac. 807; Brady v. People, 45 Colo. 364, 101 Pac. 340. Appeal dismissed. Chief Justice Steele and Mr. Justice Campbell concur.