Opinion
No. 18,296.
Decided August 26, 1957. Rehearing denied September 16, 1957.
Original proceeding in prohibition involving appeal in a forcible entry and detainer action. Rule to show caused issued.
Rule Made Absolute.
1. FORCIBLE ENTRY AND DETAINER — Statute — effect. The forcible entry and detainer statute, C.R.S. '53, 58-1-1, et seq., is sui generis and provides a complete procedure in controversies between landlords and tenants.
2. Appeals — Bond. Appeals from justices of the peace require the filing of a bond, whereas appeals in forcible entry and detainer actions require the filing of undertakings, the former has to do with liquidated amounts, the latter with amounts to be determined.
3. Appeals — Bond — Sufficiency. In an appeal from a justice of the peace in a forcible entry and detainer action, the bond required to effect a general appeal will not suffice.
4. Appeals — Bonds — Sufficiency. A bond conforming to the requirements of the general law governing appeals from justices of the peace is legally ineffectual and practically inadequate in an appeal in a forcible entry and detainer action.
5. Appeal — undertakings — Jurisdiction. Failure to file two undertakings required to effect an appeal under the forcible entry and detainer statute, is fatal to the appeal and the county court acquires no jurisdiction other than dismiss the appeal.
6. Appeal — Possession — Bonds. The two undertakings prescribed by the forcible entry and detainer statute are conditions precedent to an appeal where possession is retained.
7. Appeal — Undertakings — Jurisdiction. In an appeal from a justice of the peace in a forcible entry and detainer action, where the required undertakings are not filed pursuant to statute, the county court acquires no jurisdiction of the action other than to dismiss the appeal.
Original proceeding.
Mr. ALBERT L. VOGL, Mr. WILLIAM F. REYNARD, Mr. FRANK C. LOWE, for petitioners.
Mr. HENRY W. LUEDDE, for respondents.
PLAINTIFF applied to this court for a writ (in the nature of prohibition) to issue and be directed to the County Court of Clear Creek County and the judge thereof. For convenience we shall designate these defendants as the County Court.
In its complaint filed before us plaintiff sought a stay of all further proceedings in the case of the plaintiff against White, Green and Addison Associates. Inc. (herein referred to as "Associates"), and that the County Court be required to show cause why an attempted appeal lodged in the County Court should not be dismissed for want of jurisdiction.
After a preliminary review we issued an order to show cause. An answer was filed, and we now consider the matter upon the record and the briefs submitted by the parties. The only issue which we must determine is whether "Associate" filed the undertakings required for an appeal from the adverse judgment of the justice of the peace to the County Court in an action of unlawful detainer.
Certain mining claims were the subject of the unlawful detainer action. It was alleged that the tenant retained possession after breach of certain covenants contained in the lease and notice demanding possession of the property. Judgment was entered by the Justice of the Peace in favor of the plaintiff and against Associates." "Associates" then appealed and filed the following two questioned instruments:
UNITED STATES NATIONAL BANK Denver, Colorado, 3/7, 1957 Pay to the order of .............................. $150.00
One Hundred and Fifty and no/100 ..... Dollars
For Appeal Bond for White Green Addison and/or Trans World Mining Corp. For Agro Mine MARTIN A. ADDISON
_____________________________
APPEAL BOND FROM J.P. TO COUNTY COURT
Civil
KNOW ALL MEN BY THESE PRESENTS. That we, WHITE, GREEN AND ADDISON ASSOCIATES, INC., a Texas corporation, are held and firmly bound unto THE PEOPLE OF THE STATE OF COLORADO and GENERAL AMERICAN INDUSTRIES, INC., a Colorado corporation in the penal sum of One Hundred Fifty ($150.00) Dollars, lawful money of the United States, cash deposit of which is made herewith.
WITNESS our hand and seals this 28th day of February, A.D. 1957.
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That whereas, the said General American Industries, Inc., a Colorado corporation, did on the 26th day of February, A.D. 1957, before Bernard H. Bruce, a Justice of the Peace within and for the County of Clear Creek, State of Colorado, recover a judgment against the above bounden White, Green and Addison Associates, Inc., for the repossession of certain properties, from which judgment the said White, Green and Addison Associates, Inc., has taken an appeal to the County Court of the County of Clear Creek aforesaid, and State of Colorado.
NOW IF THE SAID White, Green and Addison Associates. Inc. shall prosecute its appeal with effect, and shall pay all costs assessed by the Court upon dismissal or trial of said appeal and shall pay to said General American Industries, Inc., all damages for which judgment may be given heretofore or hereafter sustained by reason of the unlawful detainer of said property should said judgment be affirmed on appeal, then the above obligation to be void, otherwise to remain in full force and effect.
WHITE, GREEN AND ADDISON ASSOCIATES, INC.
by [signature not legible]
[SEAL] Vice-president
Approved by me at my office, this 7 day of March, 1957
BERNARD H. BRUCE, Justice of the Peace.
A proper resolution of the single question before us required a consideration of several statutes the first of which are the several provisions covering appeals generally from Justices of the Peace to the County Courts C.R.S '53, 79-13-1 provides that " All appeals from judgments of justices of the peace, both in civil and criminal actions, shall be taken to the county court of the same county. . ." the next section in part requires that "Appeals from judgments of justices of the peace, to the county court, shall be granted in all cases except on judgment confessed. the party praying the appeal, within ten days from the rendition of the judgment from which he desires to take an appeal shall enter into a bond, with security to approved and conditioned as provided in section 79-13-3. . ." The form of the bond is set out in Section 79-13-3 in these words and symbols (omitting signature and approval provision):
"Know all men by these presents. That we, A.B. and C.D., are held and firmly bound unto E.F., in the penal sum of (here insert double the amount of the judgment and costs), dollars lawful money of the United States for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly, severally and firmly by these presents. Witness our hands and seals this ......... day of ......, 19 ....,
"The condition of the above obligation is such that whereas the said E. F. did on the ......... day of .........., A.D. 19 ...., before ..............., a justice of the peace in and for the county of .........., recover a judgment against the above bonden A.B., for the sum of .................... dollars; from which judgment the said A.B. hath taken an taken an appeal to the county court of the county of ............. aforesaid, and state of Colorado.
"Now if the said A.B. shall prosecute his appeal with effect and shall pay whatever judgment may be rendered by the court upon dismissal or trial of said appeal then the above obligation to be void, otherwise to remain in full force and effect." (Emphasis supplied:)
The forcible entry and unlawful detainer provisions are C.R.S. '53, 58-1-1 to 58-1-26. Contained therein are certain prerequisites for an effectual appeal. Although not a decisive factor in this case except as it sheds light on the reason for the provision in Sec. 58-1-23, requiring an additional undertaking covering use and occupation, sec 58-1-19 should be considered. This section, which relates to appeals of judgment for possession in cases involving the non-payment of rent, states that an appeal shall not deemed taken and perfected unless a deposit of rentals be made in the justice of the peace court. It further provides that during the pendency of the action in the county court on appeal, further deposits of rent be made in the county court.
Next to be considered is Section 58-1-18 which prescribes that:
"If either party shall feel aggrieved by the judgment rendered in such action before such justice, he may appeal, as in other cases tried before justices of the peace, except as provided, in this article, No such appeal by a defendant shall stay proceedings on such judgment, unless the appellant, within forty-eight hours. Sundays excepted, after judgment, shall execute and file with the justice his undertaking to plaintiff, with two or more sureties, to be approved by the justice, to the effect that the appellant will pay all costs which have accrued, or may thereafter accrue, and all damages which plaintiff may have sustained, or may thereafter sustain, in consequence, of the wrongful detention of the premises in question, during the pendency of such appeal."
The next important provision is Section 58-1-23, which reads as follows:
"Appeals and writs of error to the supreme court from the judgment of the district, or county courts of this state in proceedings under this article, shall be allowed as in other cases; provided, that in addition to the condition now prescribed by law, the condition of the undertaking on appeal, and the time of filing the same shall be required by this article in cases of appeal from justices of the peace. In cases of appeal, from judgments founded upon causes of action embraced in subsection (4) of section 58-1-4 the deposit of rent money during pendency of appeal shall be made, or judgment of affirmative shall be entered in the manner provided in section 58-1-19. In all other cases where judgment is rendered for the possession of the premises the party appealing from such judgment, whether in justice courts or courts of record, in addition to the undertaking hereinbefore mentioned, shall make and file an additional undertaking with sufficient sureties to be approved by the justice or court in such sum as may be fixed by such justice or court conditioned for the payment to the plaintiff of all sums that may be awarded to the plaintiff for the use and occupation of the premises, pending such appeal either in said action or in any other action thereafter instituted by the plaintiff against said defendant, during the pendency of said appeal."
The forcible entry and unlawful detainer provision are sui generis. It has been stated that "the forcible entry and unlawful detainer act * * is a statute separate and apart from the Civil code and * * provides at length and in detail, a complete procedure and furnishes a remedy to landlords in controversies between them and their tenants." Hewitt v. Landis, 75 Colo. 277, 225 Pac 842. With equal propriety it may be said that for the most part the statute is "separate and apart" from the general provisions relating to procedure before justices of the peace.
It is submitted that the sections of the statute providing generally for appeals from the justices of the peace advisedly require the filing of bond: whereas the sections concerning appeals in forcible entry and unlawful detainer actions advisedly require the filing of undertakings. The former has do with liquidated amounts, the latter with amounts to be determined. A bond is an obligation in writing, bonding the signatories to pay a sum certain upon the happening of a certain event; and undertaking is an obligation in writing binding the signatories to pay such an amount as shall be adjudged due. See Wilhelm v. Hack, 234 Wis. 213, 290 N.W. 642. Although the essential purpose and effect of the two instruments are the same, the dissimilarity in terms is fundamental.
C.R.S. '53, 79-13-2 and 79-13-3 require that a bond in double the amount of the judgment be filed. These sections admittedly refer to a sum certain. Since forcible entry and unlawful detainer provisions relate to sums uncertain (damages accrued and to accrue and for use and occupation) a bond filed pursuant to these sections would not suffice.
Moreover C.R.S. '53, 58-1-26 included in the forcible entry and unlawful detainer act, provides for the recovery of "treble damages * * * against the person found guilty, in a separate action for any damages or injury" during the period of time that the owner is deprived of the possession of the property. This section concludes as follows: "In all cases where an appeal shall have been taken by the defendant in the original action, and the judgment appealed from shall have been affirmed, and an undertaking shall have been given upon the taking of such appeal, the action provided for in this section may be maintained as well against the sureties in such undertaking as against the principal therein." Obviously, a bond given pursuant to Sections 79-13-2 and 79-13-3 (the general appeals provision) would not and could not indemnify the obligee for such damages.
A study of the forcible entry and unlawful detainer statute produces conviction that the bond filed in the instant case is legally ineffectual and practically inadequate. While this bond conforms to the requirements of the general law covering appeals from justices of the peace, no more can be said for it.
[5, 6] "Associates" having retained possession of the property, its failure to file the two undertakings required by the forcible entry and unlawful detainer statute is fatal to the appeal, the action never left the jurisdiction and dominion of the justice of the peace, and hence never ascended to the county court for it to act in the premises other than to order dismissal for want of jurisdiction to hear and determine the controversy. Adams v. Decker, 50 Colo. 236, 114 Pac. 654; Erbaugh v. Fields, 77 Colo. 254, 235 Pac. 568; Lamon v. Zamp, 82 Colo. 294, 259 Pac. 1041. At this late date it appears to be a firmly entrenched construction of the law that these two undertakings are conditions precedent to an appeal where possession is retained. Erbaugh v. Fields, supra; Getty v. Miller, 10 Colo. App. 331, 51 Pac. 166; Smith v. Schreiber, 93 Colo. 497, 27 P.2d 491.
Section 58-1-18 required an undertaking "to the effect that the appellant will pay all costs which have accrued, or may thereafter accrue, and all damages which plaintiff may have sustained, or may thereafter sustain. in consequence of the wrongful detention of the premises in question, during the pendency of such appeal." Section 58-1-23 requires an additional undertaking "conditioned for the payment to the plaintiff of all sums that may be awarded to the plaintiff for the use and occupation of the premises, pending such appeal. . ." It is to be observed that these undertakings provide respectively for damages and for use and occupation of the premises accruing during the pendency of the appeal. The retention of the premises while the appeal is running its course manifestly makes mandatory the filing of these undertakings in order to vest the county court with jurisdiction.
Attempting to probe the rational of the requirement of the additional undertaking prescribed by Section 58-1-23, a provision inserted by way of an amendment to original act, it would appear that since Section 58-1-19 requires a deposit of rent in nonpayment of rent cases, rentals were excluded as items of damage recoverable under the provision requiring an undertaking to cover damages which had accrued or would accrue. In order to make certain that a reasonable rental for use and occupation would then be recoverable, Section 58-1-23 was amended to require the additional undertaking to cover use and occupation.
Had "Associates" surrendered possession upon the entry of the adverse judgment by the Justice of Peace, yet desired to appeal the judgment in order to have a trial de novo in the County Court to establish that its possession of the premises was proper at the time suit was originally filed, then an undertaking for costs accrued and to accrue, and for damages already accrued, would have satisfied the statute. And in such event, one undertaking in an indeterminate amount, to protect the owner in his right to costs accrued and to accrue and for damages accrued, would have sufficed. The bond filed in this case clearly is not such undertaking.
In this possession was not yielded to the landlord thereby making applicable the prerequisite of two undertakings in order to perfect the appeal and establish jurisdiction in the County Court.
The required undertakings not having been filed, the County court never acquired jurisdiction of the suit for any purpose other than to order dismissal. The rule is made absolute, and the County Court is directed to dismiss the attempted appeal in conformity with this opinion.
MR. JUSTICE HALL dissents.
MR. JUSTICE DAY not participating.
MR. JUSTICE HALL dissenting: