Colorado § 13-1-110 - Appeal bond defective or insufficient.

§ 13-1-110. Appeal bond defective or insufficient.

If, at any time pending an appeal in any action, suit, or other proceeding, it appears to the appellate court that the appeal bond or undertaking is defective or insufficient or that any surety thereon has died, or has removed or is about to remove from this state, or has become or is likely to become insolvent, such appellate court shall order another appeal bond or undertaking, or such other and further security as to the appellate court seems proper, if the appellant or his attorney of record has been served with at least twenty-four hours' written notice of an application of the appellee for such order. If the appellant fails to comply with said order within ten days after the making of the same, the appeal shall be dismissed.

Source: L. 19: p. 113, § 1. C.L. § 5623. CSA: C. 46, § 14. CRS 53: § 37-1-11. C.R.S. 1963: § 37-1-11. L. 87: Entire section amended, p. 1575, § 11, effective July 10.

ANNOTATION

The appellate court has full powers of determining the sufficiency of appeal bonds. Brown v. Ohman, 93 Colo. 561, 27 P.2d 588 (1933).

An objection to the sufficiency of an appeal bond in a lower court cannot be raised for first time on review. Brown v. Ohman, 93 Colo. 561, 27 P.2d 588 (1933).

In effect this section abolishes motions to dismiss appeals for insufficient bond, and substitutes a motion for new bond, and where no such motion is filed, a motion to dismiss for defective bond is properly overruled. Peters v. Peters, 82 Colo. 503, 261 P. 874 (1927).

Powers of appellate court. The appellate court can set the amount of an appeal bond, order an additional surety, or approve the signature of a new surety on an old bond. Brown v. Ohman, 93 Colo. 561, 27 P.2d 588 (1933).

Court can provide for addition of new sureties. If, after the approval of an appeal bond, it is found that a surety is insufficient, this section provides for the addition of new sureties, even after appeal. Zimmerman v. Combs, 91 Colo. 313, 14 P.2d 693 (1932).

The fact that a new surety signed the first bond instead of new one is immaterial. Where on appeal the surety on the bond died and another was procured, the fact that the latter, through inadvertence, signed the first instead of the new bond, was held immaterial, where the bond signed had endorsed thereon the approval of the court clerk. Brown v. Ohman, 93 Colo. 561, 27 P.2d 588 (1933).

Filing appeal bond without order fixing amount does not nullify appeal. Where on appeal from county to district court, the county judge entered an order reciting the filing of an appeal bond and its approval, the mere fact that there was no order fixing the amount of the bond did not nullify the appeal. Brown v. Ohman, 93 Colo. 561, 27 P.2d 588 (1933).

Appeal bond as used in this statute means the cost bond described by C.A.R. 7 and not a supersedeas bond. Hart v. Schwab, 990 P. 2d 1131 (Colo. App. 1999).