McKelvey v. District Court

345 P.2d 726, 140 Colo. 557, 1959 Colo. LEXIS 386

• Court: Supreme Court of Colorado
• Decided: November 2, 1959
• Docket: No. 19,211
• Status: Published

Opinion

Mr. Justice Sutton

delivered the opinion of the Court.

Respondent Hiroko Miyake filed a claim in the county court against the estate of one Yoshida in the amount of $7,730.00 and after hearing, was allowed the sum of $711.00. Judgment entered on October 7, 1958, and Miyake was granted ten days within which to file a motion for a new trial. The latter was filed on October 14, 1958, and denied on November 6, 1958.

On November 14, 1958, five weeks after entry of the coúnty court judgment, Miyake filed her appeal bond and on November 19, 1958, lodged her transcript in the district court. The district court has set the matter for trial and petitioner seeks by original proceedings in this court to prevent such action. He urges several grounds as justification for our intervention. We need, however, only say that the. facts of this case fall squarely within, and are governed by, the decision in Andrews v. Lull (1959), 139 Colo. 536, 341 P. (2d) 475. The gist of it is that Miyake did not lodge her appeal in the district court within the time required by C.R.S. ’53, 37-6-11, hence that court acquired no jurisdiction in the matter and has no authority to proceed in any manner in that action.

The Rule is made absolute.

Mr. Justice Moore and Mr. Justice Doyle specially concur because this issue has been previously decided in Andrews v. Lull.