Truesdale v. County Commissioners of Montrose

44 Colo. 416

Opinion

Mr. Justice Campbell

delivered the opinion of the court:

This action originated in the filing of a claim against the board of county commissioners of Mont-rose county by the plaintiff Truesdale, the sheriff of that county, for services which, he claimed to have rendered it in preserving the peace. The board disallowed the claim and the plaintiff appealed to the district court, where the judgment of the board was affirmed and the appeal dismissed. The plaintiff is here with his writ of error.

From the record before us we are compelled to dismiss this writ. In the transcript of record, certified by the clerk, is set forth what purports to be an agreed statement of facts entered into between plaintiff and defendant in the district court, upon which trial was had and judgment rendered, and the certificate states that the stipulation was filed in the case. The sole question relied upon here is the insufficiency of the agreed statement of facts to support the judgment.

Papers filed in a case during its progress,1 not intrinsically a part of the record or by statute made so, do not become such by the act of the clerk in mark ing them filed or entering them of record, or including them in his certified transcript.'

Where an action is tried by a court or a jury upon evidence produced in court, or upon an agreed statement of facts, this evidence, or the agreed statement, to be considered in this court on review, must be embodied in a bill of exceptions, and the parties, "even by agreement, cannot dispense with the bill. There being no bill here, we cannot inquire into the rightfulness of the judgment under the agreed facts. Our cases are uniform on this proposition.—Filley v. Cody, 4 Colo. 542; Wike et al. v. Campbell, 5 Colo. 126; Patrick et al. v. Weston, 21 Colo. 73.

We may observe that -this is not an agreed case brought under section 278 of the' Code, but it is a case where, in a civil action already pending, parties have tried the case upon an agreed statement of facts. The writ is therefore dismissed. Dismissed.

Mr. Justice Gabbert and Mr. Justice Bailey concur.