Behymer v. Nordloh

12 Colo. 352

• Court: Supreme Court of Colorado
• Decided: December 15, 1888
• Status: Published

Opinion

Mr. Justice Elliott

delivered the opinion of the court.

Were the question res nova in this state there would be ground for contending that the statute (Gen. Stat. § 2061) requiring the .justice to record in his docket “the amount and nature of the debt sued for ” was mandatory, and that its omission was a fatal jurisdictional defect. The doctrine announced in Home v. Duff, 5 Colo. 574, and Smith v. Aurich, 6 Colo. 388, relating to courts of -record, bears .a close analogy to that contended for by the appellants in this action, but the decisions as to courts not of record are the other way; and it is held that the omission of the justice to record the aforesaid matters in his docket may be supplemented by proofs aliunde. It is true that, if the justice has no jurisdiction over the subject-matter of a cause, the county court acquires none by virtue of an ex parte appeal, where the appellee insists in apt time upon his objection against the jurisdiction; but it is different where the parties voluntarily appear in the appellate court having jurisdiction of the subject-matter, and go to trial on the merits. It may be determined by the evidence on the trial in the appellate court whether or not the justice has jurisdiction. Liss v. Wilcoxen, 2 Colo. 85; Lyon v. Washburn, 3 Colo. 201; Downing v. Florer, 4 Colo. 210; Smith v. District Court, id. 235.

The evidence on the trial of this cause in the county court might have been preserved by bill of exceptions, and then we could easily determine whether the action was of such a nature as to be within the jurisdiction of a justice of the peace. By the same means we might determine the other questions in controversy, to wit: Whether plaintiff sued as guardian for a demand due to a minor, or whether the words “guardian of the estate of George Marty,” immediately following the name of the plaintiff in the summons, were merely descriptio personas; also, whether the demand sued for was an interest-bearing claim or otherwise. Baker v. Ormsby, 4 Scam. 325; Brent v. Shook, 36 Ill. 125; Welsh v. Karstens, 60 Ill. 117.

The defendants were allowed time to prepare and preserve such bill of exceptions, but, not having done so, we must presume that the proofs before the county court on the trial were sufficient to sustain the jurisdiction of the county court, and to warrant the finding and judgment as rendered. Martin v. Force, 3 Colo. 199; Dusing v. Nelson, 7 Colo. 184; Hughes v. Cummings, 7 Colo. 138; Barnett v. Wolf, 70 Ill. 76.

The judgment of the codnty court is affirmed.

Affirmed.