People ex rel. Rocky Mountain National Bank v. Court of Appeals

Mr. Justice Gabbert delivered the opinion of the court: The only question presented for determination is the authority of the court of appeals to enter and consider as pending on error an appealed case transferred to it by the supreme court, which was not appealable, where the appellee has joined in error. The determination of this question depends upon whether section 388a, Mills Code, confers this authority. When the former court of appeals was in existence, questions frequently arose under the act defining the jurisdiction of that tribunal on the subject of the jurisdiction of the supreme court and the court of appeals to review a case on appeal or on error. To obviate the results which would follow the mistake of a party in taking a case to either of these courts by appeal, when on investigation it was found that the cause was not appealable, but the court to which it was tafeen had juris [491] diction to consider it on error, the section of the code mentioned was enacted. It was repealed by the act of 1911, because thereby appeals 'were abolished, and the court of appeals was no longer in existence, but with the saving clause that it should not in any manner affect any cause in which an appeal had been perfected prior to the time the act took effect. The object of this proviso was to save to parties who had appealed causes to the supreme court, which it did not have jurisdiction to consider on appeal, the right therefore given to have such causes entered and reviewed as pending on writ of error. 'The act creating the present court of appeals was passed at the same session. Nothing was said in that act relative to the saving clause in the section of the act repealing section 388a. That clause stood unchanged. The sole purpose, however, of the act creating the court of appeals was to establish an auxiliary tribunal to aid in the disposition of causes pending in the supreme court. To accomplish this, the act vested the court of appeals with jurisdiction to hear and determine all judgments in civil causes pending in the supreme court, or wherein appeals had been perfected prior to the date the act took effect, with certain exceptions which are not material in the present case, and made it obligatory upon the supreme court to at once transfer to the court of appeals for hearing and determination, all such appeals when that court was organized. Nothing appears in the act which deprives litigants of any rights they could have exercised had their causes continued on the docket of the supreme court for final disposition, instead of being transferred to the court of appeals. On the contrary, when the purpose and scope of the act are considered, the necessary logical conclusion is, that causes pending on appeal in the supreme court when transferred to the court of appeals were to be heard and determined by the latter tribunal, so far as any question [492] in this case is involved, precisely as though such causes had remained on the docket of the supreme court, and hence section 388a, and the proviso in repealing it must be read in pari materia» with the court of appeals act. Thus read and construed authority is conferred upon the court of appeals, in the circumstances of this case, to enter as pending on error a cause which was not appealable and likewise determine it as thus entered on its merits.—Western Lumber & Pole Co. v. City of Golden, 22 Colo. App. 209, 124 Pac. 584. On behalf of petitioners it is urged that because the jurisdiction of the court of appeals is derivative only, it is without authority to issue a writ of error and, therefore, does not have jurisdiction to enter an appeal as pending on error. That question is not involved. The code section requiring a cause not appealable to be entered as pending on error does not necessitate the issuance of a writ of error or scire facias when so entered, where the appellees have joined in error, but jurisdiction of defendants, in error is conferred by their appearance as appellees.—People v. Horan, 34 Colo. 304; 86 Pac. 252; Bowling v. Chambers, 20 Colo. App. 113; 77 Pac. 16. Jurisdiction of appellees attached by their appearance in the supreme court and continued when the appeal to which they were parties was transferred to the court of appeals. What the authority of the court of appeals may be where the appellees have not appeared and joined in error is not involved, and upon a case presenting that fact we do not express any opinion. The rule to show cause is discharged and the proceedings dismissed. Decision en banc. Rule discharged and proceeding dismissed. Mr. Justice Scott not participating.