Abernathy et al. v. Wright

[No. 3847.] Abernathy et al. v. Wright. Appeals — Docketing as Writ of Error. No appeal, taken or attempted, since the repeal of the statute allowing appeals to the supreme court, and the repeal of sec. 423 of the Revised Code, can he re-entered as a writ of- error, either in this court or the supreme court. Appeal from Boulder District Court. Hon. Harry P. Gamble, Judge. Messrs. Miller, Barnd & Williams, for appellants. Mr. Samuel H. Thompson, for appellee. Motion to Re-Enter as Pending on Error, and for Supersedeas. [MAJORITY — Per Curiam.] Per Curiam. On motion of appellee, the app.eal herein was dismissed, without prejudice to the rights of appellants, if any they had to sue out a writ of error. — 23 Colo. App., 81, 127 Pac., 450. Appellants now ask to have the cause re-entered on error, and for a supersedeas. An attempt was made to perfect the appeal.-herein by filing an appeal bond in the district court October 10, 1911. At that time, chap. 6, Session Laws of 1911, by which the right to take an appeal to the supreme court in any (case was repealed, and which also repealed the provision of the Code of Civil Procedure which permitted a cause to be re-entered as. pending on error when dismissed as an appeal for lack of -jurisdiction, was, and for a long time prior thereto had been, in full force and effect. In- our opinion, no appeal taken, perfected or attempted to be perfected after that act took effect can be re-entered as pending on error in this court or in the supreme court. When we dismissed the former appeal, without prejudice to a writ of error, we' did not contemplate the suing out of a writ of error, from this court, but from the supreme court. For the reason given, the motion is denied.