Best et al. v. The Rocky Mountain National Bank of Central City, Colo.

[No. 4621.] Best et al. v. The Rocky Mountain National Bank of Central City, Colo. Appellate Practice — Praying Appeal — Time. An appeal must be prayed for within five days after the judgment appe'aled from is rendered. Where a cause is brought to the supreme court on appeal wherein the appeal was not prayed for within five days, the'appeal will be dismissed and redoeketed on error if the court would have jurisdiction to review the judgment if brought up by writ of error. Appeal from the District Court of Gilpin County. Mr. Clinton Reed and Mr. L. M. Goddard, for appellants. Mr. Chase Withrow and Mr. A. B. Seaman, for appellee. [MAJORITY — Chief Justice Campbell] Chief Justice Campbell delivered the opinion of the court. Motion to dismiss appeal. The judgment sought to be reviewed by this appeal was rendered and entered of record in the district court of Gilpin county on June. 20,1902. The appeal was prayed therefrom September 3, 1902. Section 388, Mills’ Ann. Code, allows an appeal provided it be prayed for within five days after the time of rendering the judgment. This section has been often considered by this court and the court of appeals, and, as said in Haley v. Elliott, 20 Colo. 199, 202, ‘‘Our decisions are uniform to the effect that an appeal must be prayed within the time prescribed by statute, or it cannot be maintained.” Expressly so holding are: Freas v. Townsend, 1 Colo. 86; Dusing v. Nelson, 6 Colo. 39; Hamill v. Bank of Clear Creek Co., 7 Colo. App. 472; Burchinell v. Bennett, 10 Colo. App. 150. Appellants do not question the mandatory nature of this provision. Indeed, they filed a cross motion for leave to withdraw the record for the purpose of having the same corrected to show that the appeal was prayed for within the five days prescribed by the code. This request was granted, but appellants were unable to obtain from the trial court a correction of the record to correspond to their claim that the code provision was observed, probably because the fact was otherwise. At all events, they have not filed, or presented for filing, an amended record. The appeal must be dismissed, and it is so ordered; but under section 388a, Mills’ Ann. Code, we are required to have the clerk enter the action, as pending-on writ of error, which is accordingly done. Appeal dismissed.