McKee v. Elwell

Supreme Court of Colorado

McKee v. Elwell

67 Colo. 149

CourtSupreme Court of Colorado

DecidedSeptember 15, 1919

DocketNo. 9647

StatusPublished

Cited by4 cases

This text of 67 Colo. 149 (McKee v. Elwell) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McKee v. Elwell, 67 Colo. 149 (Colo. 1919).

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Opinion by

Mr. Justice Denison.

Judgment was rendered July 5, 1917, a motion for new trial was overruled December 8, 1917 and sixty days granted for bill of exceptions. February 5, 1918, the bill of exceptions was tendered to Judge Rizer, who had tried the case, and he noted the tender and date with his signature. February 14th, 1919, the judge died, having been, ever since the tender, too ill to attend to any business involving controversy. Defendants in error disputed the accuracy of the tendered bill, and therefore it could not be settled by Judge Rizer. The record was brought here July 28th, 1919.

Plaintiffs in error present the bill here, attested by affidavits under the Act of 1911, pp. 10 and 11. That act provides for attestation by affidavits when the trial judge dies or “neglects or refuses”, to settle the bill. One'point made against the bill seems to be that there was plenty of time to get the bill settled before the judge’s death, and that his inability bcause of sickness was not neglect or refusal. Literally perhaps it was not, but according to the spirit and intent of the statute it was, and should be so regarded. Aggers v. People, 20 Colo. 348, 38 Pac. 386; Edwards v. D & R. G. R. Co., 13 Colo. 59, 67, 21 Pac. 1011.

It is also claimed that the application for the writ of error was too late, under rule 16. True, it was more than two years after judgment, but we have held that-the running [151]*151of the two years is suspended during pendency of a motion for new trial. Bates v. Woodward, 66 Colo. 555.

The motion is denied.

Garrigues, C. J. and Scott, J., concur.

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Opinion by

Mr. Justice Denison.

Judgment was rendered July 5, 1917, a motion for new trial was overruled December 8, 1917 and sixty days granted for bill of exceptions. February 5, 1918, the bill of exceptions was tendered to Judge Rizer, who had tried the case, and he noted the tender and date with his signature. February 14th, 1919, the judge died, having been, ever since the tender, too ill to attend to any business involving controversy. Defendants in error disputed the accuracy of the tendered bill, and therefore it could not be settled by Judge Rizer. The record was brought here July 28th, 1919.

Plaintiffs in error present the bill here, attested by affidavits under the Act of 1911, pp. 10 and 11. That act provides for attestation by affidavits when the trial judge dies or “neglects or refuses”, to settle the bill. One'point made against the bill seems to be that there was plenty of time to get the bill settled before the judge’s death, and that his inability bcause of sickness was not neglect or refusal. Literally perhaps it was not, but according to the spirit and intent of the statute it was, and should be so regarded. Aggers v. People, 20 Colo. 348, 38 Pac. 386; Edwards v. D & R. G. R. Co., 13 Colo. 59, 67, 21 Pac. 1011.

It is also claimed that the application for the writ of error was too late, under rule 16. True, it was more than two years after judgment, but we have held that-the running [151]*151of the two years is suspended during pendency of a motion for new trial. Bates v. Woodward, 66 Colo. 555.

The motion is denied.

Garrigues, C. J. and Scott, J., concur.

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67 Colo. 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckee-v-elwell-colo-1919.

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