Opinion
No. 18,939.
Decided June 29, 1959. Rehearing denied July 20, 1959.
Original proceeding in prohibition to restrain district court from proceeding in action on appeal from county court. Rule to show cause issued.
Rule Made Absolute.
1. PROHIBITION — Remedy — When Proper. Where a trial court is proceeding, or threatens to proceed, without jurisdiction, prohibition is a proper remedy.
2. COURTS — District Courts — Appellate Jurisdiction. Appellate jurisdiction of the district court in appeals from final judgments of the county court, applies only to judgments rendered in ordinary civil actions and does not exist in special statutory proceedings, the right of appeal in such cases being statutory and not constitutional.
3. APPEAL AND ERROR — Writ of Error — County Court — Election — Appeal to District Court — Trial De Novo. After a final judgment in the county court, a litigant may go directly to the Supreme Court by writ of error, or adopt the alternate procedure provided by the legislature for appeals to the district court and trial therein de novo, except the from judgments entered in the county court on appeals from justices of the peace.
4. STATUTES — Construction — Rule. The rule, is that nothing can be added to a statute by construction where the statute involved is clear and unambiguous.
5. NEW TRIAL — Common Law Right — Rules — Statute — Requirements. The common law right to file a motion for a new trial incorporated in the Rules of Civil Procedure is not prohibited by C.R.S. '53, 37-6-10 and 11, but if allowed does not supersede the statutory requirements.
6. APPEAL AND ERROR — County Court — Judgment — Appeal to District Court — Time to Appeal — Motion for New Trial. A litigant desiring to sue out a writ of error to the Supreme Court from a final judgment of the county court, proceeds under the Rules of Civil Procedure by filing a motion for a new trial unless dispensed with, but if he wishes to appeal to the district court for a trial de novo, and also to file a motion for a new trial, he must have his motion acted upon within the statutory ten-day period or secure an extension of time within which to lodge his appeal.
Original Proceeding.
Messrs. SHAFER NEWCOMB, for petitioner M. Richard Andrews.
Mr. CECIL R. DITSCH, for petitioners Burt, Bradberry and D.M. E. Construction Company, Inc.
Mr. WILLIAM R. YOUNG, for respondents.
THIS is an original proceeding.
Complainants were defendants in a civil action filed by Harold L. Lull in the County Court of Arapahoe County, Colorado. After Trial to the court on October 9, 10, 1958, the trial judge took the matter under advisement and entered his written Findings of Fact, Conclusions of Law and a Judgment of Dismissal against Lull on October 14, 1958. On October 23, 1958, Lull filed a motion for new trial which was denied November 11, 1958. On November 21, 1958, Lull filed with the County Court his undertaking with surety pursuant to C.R.S. '53, 37-6-11 (2), for the purpose of appealing the judgment to the District Court. On December 3, 1958, the Judge of the County Court filed all of the papers relating to the action with the Clerk of the District Court of Arapahoe County.
It is asserted by complainants that their motion filed in the District Court to dismiss the appeal on the sole ground that the District Court lacked jurisdiction should be granted on the ground, "That at no time from and after October 14, 1958, did respondent herein request, nor did the said County Court grant, any extension of time for an appeal to the aforesaid District Court." The District Court denied the motion. It is alleged that such denial violates C.R.S. '53, 37-6-11 (1), and that the District Court will proceed without jurisdiction with a trial de novo unless restrained and prohibited by this court from so doing.
Complainants state that it was thirty-eight days after the judgment before Lull filed his appeal bound and had it approved;that "Since the Judgment * * * in the County Court was neither a nonsuit nor a default, the filing of a motion for new trial did not operate to extend the time for perfecting the appeal."
Respondents' position is that the filing of a motion for a new trial extends the statutory time permitted to appeal to the district court by suspending the judgment.
As to the relief sought in this original proceedings we have held it to be proper where a trial court is proceeding, or threatens to proceed, without jurisdiction. Among the recent cases so holding are: Bardahl v. Dist. Ct. County of Jefferson (1956), 134 Colo. 112, 300 P.2d 524; Solliday v. Dist. Ct. City and County of Denver (1957), 135 Colo. 489, 313 P.2d 1000, and Toll v. Denver (Colo.), decided June 15, 1959.
C.R.S. '53, 37-6-10, provides:
"Appeal to district court, when. — Appeals may be taken to the district court of the same county, from all final judgments and decrees of the county court, except judgments of confession, by any person aggrieved by any such final judgment, or decree; provided, that no appeal shall be taken from a judgment by default, or of nonsuit unless, within ten days after the rendition of such judgment, application shall have been made to the court, by the party aggrieved, to set the same aside, and such application shall have been refused."
C.R.S. '53, 37-6-11, states in pertinent part:
"Conditions upon which appeal allowed. — No appeal shall be allowed, in any case, unless the following requisites be complied with:
"(1) The appeal must be made within ten days after the judgment is rendered, or when judgment is by default, or nonsuit, within ten days after the refusal of the county court to set aside the default, or nonsuit, and grant a new trial provided, that the county court, at any time within the period above limited, upon good cause shown, may extend the time for an appeal.
"(2) * * *."
R.C.P. Rule 81 (c) states:
"(c) Appeals from County to District Court. These rules do not supersede the provisions of the statutes of this state now or hereafter in effect relating to appeals from final judgments and decrees of the county court to the district court."
C.R.S. '53, 37-6-12, provides for the filing of the original process, pleadings and other papers with the clerk of the district court and for the docketing of the action in that court in appeals allowed under 37-6-10 and 37-6-11.
C.R.S. '53, 37-6-13, provides that "In all appeals provided for in section 37-6-12 the proceedings in the appellate court shall be de novo in all respects."
C.R.S. '53, 37-6-14, states:
"No appeal to district court in appealed cases. — Nothing in sections 37-6-10 to 37-6-13 shall be construed to authorize or allow the taking of any appeal to the district court, from any judgment given in the county court on an appeal from a justice of the peace."
In addition to the above statutes and rule considered by the parties in their briefs, the Colorado Constitution in Article VI, Section 23, provides in pertinent part:
"Appeals may be taken from county to district courts, or to the supreme court, in such cases and in such manner as may be prescribed by law. Writ of error shall lie from the supreme court to every final judgment of the county court. No appeal shall lie to the district court from any judgment given upon an appeal from a justice of the peace."
Before considering the authorities relating to the precise problem at issue here we point out that the appellate jurisdiction of district courts from final judgments of county courts applies only to judgments rendered in ordinary civil actions. No such jurisdiction exists in special statutory proceedings. Phillips v. Corbin (1898), 25 Colo. 62, 49 Pac. 279 (annexation statute); see also Delta Co. v. Poundstone (1923), 74 Colo. 191, 220 Pac. 234 (condemnation proceedings). Also that the right of appeal from a county court to a district court is statutory and not constitutional, Callahan v. Jennings, (1891), 16 Colo. 471, 27 Pac. 1055.
We can sum up the status of further proceedings after a final judgment in the county court by saying that the constitution permits all litigants to go direct to the supreme court by writ of error from the county court, and the legislature has properly provided by statute, pursuant to constitutional authority, an alternate procedure by appeals to the district court and trial de novo except upon judgments entered upon appeals from the justice of the peace courts. And, this court has interpreted this statute to apply only to ordinary civil actions.
We thus must consider, since motions for new trials have been long recognized at common law, whether one can be filed within the ten day statutory period and if so what its effect is.
Slattery v. Robinson (1895), 7 Colo. App. 22, 42 Pac. 179, decided before the adoption of our present Rules of Civil Procedure, and the dicta in Niles v. Shinkle (1949), 119 Colo. 458, 204 P.2d 1077, decided after the present rules were adopted, state that the filing of the motion without securing an express extension of time does not result in staying the judgment. Charles v. Sprott (1924), 75 Colo. 90, 224 Pac. 222, cited by respondents held to the contrary and we expressly overrule it. The latter case cited Bates v. Woodward (1919), 66 Colo. 555, 185 Pac. 351, and Kinney v. Yoelin Bros. Co. (1923), 74 Colo. 295, 230 Pac. 998, as authority, but those cases did not so hold. Other authorities relied upon by respondents related to the finality of district court judgments so are not in point.
Our review of the authorities leads us in to the conclusion that strict statutory rules of construction (see 82 C.J.S. 893, 894. Section 382; page 694. Section 345; pages 689-90. Section 344; and page 874, Section 376) provide that nothing can be added by way of construction to a statute which is clear and unambiguous.
However, the common law right (see "A Treatise on the Law of New Trials, in Cases Civil and Criminal." Vol. 1, by Graham, 1855; Burns Bros. et al. v. Cook Coal Co., (1930), 42 F.2d 109; and Gunn v. Union R. Co., (1901), 23 R.I. 289, 49 A. 999, at page 1001), to file a motion for new trial, now incorporated in our Rules of Civil Procedure, is not prohibited by the statute in question and if allowed does not supersede any statutory requirement. It is merely an addition thereto and we conclude it is proper to file such a motion.
The effect of the motion, however, is some thing else. If a litigant desires to sue out a writ of error he, of course, file his motion and proceeds under the Rules of civil Procedure. If he desires to appeal to the district court for a trial de novo and wishes also to file a motion for a new trial, he must either have his motion acted upon within the statutory ten day period or secure an extension of time to lodge his appeal as the statute specifies.
Lull having secured no such extension of time, waived his right to appeal to the district court.
The rule to show cause is made absolute.
MR. JUSTICE MOORE specially concurring and Mr. JUSTICE DOYLE dissenting.