Board of County Commissioners v. Lovell

20 Colo. 80

• Court: Supreme Court of Colorado
• Decided: April 15, 1894
• Status: Published

Opinion

Mr. Justice Elliott

delivered the opinion of the court.

This case is not properly presented for review in this court; the matters submitted are entirely insufficient both in form and substance. The case was docketed here as an appeal; but no authenticated copy of the record of any judgment or decree has been lodged in the clerk’s office of this court as the law requires. Code, sec. 389.

There is nothing presented or submitted to show that any appeal in this case was ever perfected. The original bill of exceptions is filed in this court; but it does not purport to contain all the proceedings in the lower court, nor all the evidence produced at the trial; nor is the bill of exceptions certified by the clerk or attested by the seal of the court; nor is there anything to show that it was ever filed in the lower court.

There is upon file in this court what purports to be a printed abstract of the record; but this cannot be relied upon to support the appeal. The abstract of the record, as its name implies, is to be talcen from the duly authenticated copy of the record required to be lodged with the clerk of this court. The supposed abstract as printed and filed shows a ruling of the district court upon the demurrer to the evidence, and a finding in favor of Lovell against the commissioners; but it does not show any final judgment upon the merits of the controversy, and, hence, no judgment reviewable by an appellate court under our present practice, or enforceable in the court below except for costs in the particular prosecution against the commissioners by Lovell. As was said in Alvord v. McGaughey, 5 Colo. 246: “ The findings of the court are no more a judgment than would be the verdict of a jury in a cause tried before a jury; and the statement in the bill of exceptions that a judgment was rendered cannot supply the place of the judgment itself.”

In the present status of this case this court cannot undertake to determine an important constitutional question such as is supposed to be involved in the military poll tax penalty clause of the act of 1889. Fortunately, that clause was materially modified at the very next session of the legislature. See Session Laws, 1891, p. 343.

Under the circumstances, an order Will he entered striking this ease from the dockets of this court without costs to either party.

Stricken from the Docket.