HAYES v. JAMES.

27 P. 894

1 Colo.App. 130

HAYES
v.
JAMES.

Court of Appeals of Colorado

October 12, 1891

Appeal
from district court, Las Animas county; JULIUS C. GUNTER,
Judge.

This
was an action by S.B. James against J.W. Hayes. From a
judgment of the district court affirming a judgment of the
county court in pursuance of Sess.Laws Colo.1885, p. 159,
defendant appeals. Affirmed.
[27 P. 895.]

Caldwell
Yeaman and Bo. Sweeney, for appellant.

Wm. E.
Beck and C.W. Lester, for appellee.

RICHMOND,
P.J.

This
appeal is prosecuted for the purpose of reversing the action
of the court below in affirming a judgment of the county
court appealed to the district court. The appeal from the
county to the district court was not taken during the day in
which the judgment was rendered, nor was a notice in writing
served within five days after the appeal was perfected. The
action of the district court in affirming the judgment was in
pursuance of the statute. Section 4, p. 159, Sess.Laws, 1885.
The statutory right in question--having the appeal dismissed
or the judgment affirmed--is a personal privilege, which may
be waived; unless waived, the judgment must be sustained. The
contention of appellant is that the appellee, prior to his
motion of affirmance of the judgment, waived the privilege by
a general appearance, and in support of his contention he
calls our attention to the following portion of the [1
Colo.App. 131] record, to-wit: "Be it remembered that
heretofore, at the regular September term, 1889, of the
district court, within and for the county of Las Animas,
aforesaid, and subsequent to this cause being placed upon the
docket of the said court on appeal from the county court, and
on the first day of said term, said cause was called on the
first call of the docket, and it was then announced by the
attorneys of record for the respective parties herein, Dunbar
& Lester for plaintiff, and Caldwell Yeaman and Bo. Sweeney
for defendant, that said cause was at issue, and that it was
a case for jury trial, which facts were noted by the judge
upon his docket by entering thereon the letters 'I'
and 'J,' meaning 'at issue' and 'jury
trial,' but no formal record thereof was made upon the
records of said court, and said cause was not at said time,
or any other time, set down for trial." The contention
of appellant is that this was such a general appearance as
should preclude the plaintiff from insisting upon an
affirmance of the judgment, and in support of this contention
he cites the cases of Coby v. Halthusen, (Colo.Sup.) 26 P.
148, (Feb. 27, 1891,) and Robertson v. O'Reilly, 14 Colo.
441, 24 P. 560. We cannot concur in this view. The cause was
appealed, and the appeal perfected from the county to the
district court at the succeeding September term of that
court. The appeal being perfected, it was the duty of the
clerk of the district court to place the same upon the trial
docket. On the first day of that term, as is customary in
nisi prius courts of this state, the docket was called, and
the cause marked as at issue and for jury trial. It is true
that the attorneys for the respective parties were present,
yet the record in this case fails to show, by affidavits or
otherwise, that the attorneys representing the appellee
indicated, by word or sign, his purpose to try the cause, and
waive his right to ask the court for an affirmance of the
judgment. Certain it is that at the succeeding term, which
was a special term of that court for the trial of criminal
causes, notice was served of the intention of appellee to ask
the court for an affirmance of the judgment. It is equally
certain [1 Colo.App. 132] that the attorneys for the appellant
appeared and consented that the cause should be continued for
argument on motion, until the succeeding regular term of
court, and that at that term the attorneys for both parties
appeared and argued the motion based upon the statute; and
not until the court below had determined and passed upon the
question was it ever suggested that the appellee had waived,
by general appearance, his right. We cannot declare that,
without some evidence or some record, a general appearance
was ever entered in this case by appellee. He had a right to
appear for the purpose of asking for an affirmance of the
judgment or a dismissal of the appeal. In the case of
Robertson v. O'Reilly, supra, the circumstances were
radically different from those recited in the record here,
and so, too, it may be said of the case of Coby v. Halthusen,
supra. In the one an appearance was entered and a continuance
asked; in the other, an appearance was entered, and the cause
was continued from term to term for a period of three terms,
and affidavits were submitted to the effect that the notice
provided for by the statute was waived verbally between the
attorneys. In this particular case now under consideration
the record of the court below discloses no admission on the
part of the attorney for appellee indicating that he appeared
generally for the trial of the cause, nor is there any
affidavit filed showing that he had by word or act so
appeared. We do not think that the circumstances in this case
warrant us in reversing the judgment. The judgment of the
court below must be affirmed.