Mattice v. Wilcoxon

17 Colo. App. 160

• Court: Colorado Court of Appeals
• Decided: January 15, 1902
• Docket: No. 2091
• Status: Published

Opinion

Gunter, J.

Appellee sued in the county court, his complaint stating two causes of action. Upon trial he was non-suited on the first, recovering judgment on the second. An appeal was by present appellants to the district court; there a retrial on both causes of action resulted in a judgment against appellants on the first cause of action and a judgment in- their favor on the second.

Appellants objected in the district court to a retrial of the first cause of action, contending that the judgment in the county court nonsuiting apjiellee on such cause of action was res adjuclicata.

This is the contention here: The case instituted in the county court and tried here, consisted of two causes of action; this was appealed to the district court. The procedure on appeal was controlled by Mills’ Ann. Stats., vol. 1, see. 1089, reading as follows: “In all appeals provided for in the foregoing section, the proceedings in the appellate court shall be, in all respects, de novo. Said appellate court shall consider and pass upon all objections to the pleadings and proceedings in the said cause, which may have been made in the county court, and make such orders, and render such judgments or decrees as shall be meet and proper, in the same manner as though such cause had been originally'begun in said district court; and the defendant, where judgment has been rendered by default, shall have a right to plead any and all defenses which he might have pleaded had the cause been originally brought in the district court. All such causes shall be conducted in the same mañuelas if originally brought in the district court. ’ ’

The court—Tabor v. Miles, 5 Colo. App. 128, 38 Pac. 64—in ruling upon this statute, says: “The statute is clear and explicit; no construction is necessary. The language is ‘shall be in all respects de novo/ All proceedings of the court below are vacated, held for naught. Such being the case, nothing was res adjudicata, * * * . There was nothing that could be pleaded of proceedings there had that would conclude either party. ’ ’

The appeal to the district court entitled appellee herein to a retrial of the case heard by the county court.

As the case heard by the county court was upon the two causes of action, the district court ruled correctly in permitting a retrial upon the two causes of action on appeal. Its judgment is affirmed.

Affirmed.