Colorado § 13-6-310 - Appeals from county court.

§ 13-6-310. Appeals from county court.

(1) Appeals from final judgments and decrees of the county courts shall be taken to the district court for the judicial district in which the county court entering such judgment is located. Appeals shall be based upon the record made in the county court.

(2) The district court shall review the case on the record on appeal and affirm, reverse, remand, or modify the judgment; except that the district court, in its discretion, may remand the case for a new trial with such instructions as it may deem necessary, or it may direct that the case be tried de novo before the district court.

(3) Repealed.

(4) Further appeal to the supreme court from a determination of the district court in a matter appealed to such court from the county court may be made only upon writ of certiorari issued in the discretion of the supreme court and pursuant to such rules as that court may promulgate.

Source: L. 64: p. 421, § 36. C.R.S. 1963: § 37-15-10. L. 85: (3) repealed and (4) amended, pp. 572, 570, §§ 12, 5, effective November 14, 1986.

Editor's note: In Hinds v. Foreman, 2026 CO 9, 583 P.3d 118, the Colorado Supreme Court held that sections 13-20-1101 (7) and 13-4-102.2 are unconstitutional to the extent that they authorize the court of appeals to review final judgments, which conflicts with article VI, section 17, of the state constitution, and with subsection (1) of this section.

Cross references: For review on certiorari from a county court as authorized by this section, see C.A.R. 49.

ANNOTATION

I. General Consideration.

II. Statutory Right of Appeal.

III. Action of the District Court.

IV. Appeals to Supreme Court.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Criminal Law", see 32 Dicta 409 (1955). For article, "One Year Review of Contracts", see 39 Dicta 161 (1962). For article, "One Year Review of Civil Procedure and Appeals", see 40 Den. L. Ctr. J. 66 (1963). For article, "Appeals of County Court, Municipal Court, and Magistrate Rulings", see 47 Colo. Law. 32 (Oct. 2018).

Annotator's note. Since § 13-6-310 is similar to repealed § 37-15-101, C.R.S. 1963, § 37-6-101, CRS 53, CSA, C. 46, § 165, and laws antecedent thereto, relevant cases construing those sections have been included in the annotations to this section.

Although § 13-4-110 (3) provides that cases filed in wrong appellate court shall not be dismissed, where appeal will not lie in either court, the only review being by certiorari, the case must be dismissed for failure to comply with the statutory procedure. People v. Meyers, 43 Colo. App. 63, 598 P.2d 526 (1979).

Applied in Chavez v. People, 193 Colo. 50, 561 P.2d 1270 (1977); People v. Gonzales, 198 Colo. 546, 603 P.2d 139 (1979); People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980); Garcia v. People, 200 Colo. 413, 615 P.2d 698 (1980); People v. Luna, 648 P.2d 624 (Colo. 1982).

II. STATUTORY RIGHT OF APPEAL.

This section gives a statutory right of appeal. There is no constitutional right to an appeal from the county court to the district court; such right exists only when the general assembly has expressly or by clear implication declared in its favor. Callahan v. Jennings, 16 Colo. 471, 27 P. 1055 (1891); Shapter v. Arapahoe County Court, 13 Colo. App. 484, 59 P. 59 (1892); Andrews v. Lull, 139 Colo. 536, 341 P.2d 475 (1959).

This section provides that appeals from county courts shall be taken to the district courts. This is a statute general in nature. Russell v. Wheeler, 159 Colo. 588, 413 P.2d 700 (1966).

Appeals of final judgments. This statute provides that appeals from final judgments and decrees of the county court "shall be" taken to the district court. People ex rel. City of Aurora v. Smith, 162 Colo. 72, 424 P.2d 772 (1967).

An order vacating a previous order setting aside a judgment is not a final judgment from which an appeal will lie. Hayhurst v. Hayhurst, 91 Colo. 58, 11 P.2d 804 (1932).

This section applies only to ordinary civil actions. Andrews v. Lull, 139 Colo. 536, 341 P.2d 475 (1959).

Therefore, no appellate jurisdiction exists in district court in special statutory proceedings. The appellate jurisdiction of district courts from final judgments of county courts applies only to judgments rendered in ordinary civil actions. No such jurisdiction exists in special statutory proceedings. Bd. of Comm'rs v. Poundstone, 74 Colo. 191, 220 P. 234 (1923); Selk v. Ramsey, 110 Colo. 223, 132 P.2d 454 (1942); Andrews v. Lull, 139 Colo. 536, 341 P.2d 475 (1959); Council of City of Englewood v. Nat'l Tea Co., 147 Colo. 96, 362 P.2d 1048 (1961).

The section does not except from its operation those cases which are commenced in the municipal court and thereafter appealed to the county court. Appeal from all final judgments of the county court is now to be made to the district court. People ex rel. City of Aurora v. Smith, 162 Colo. 72, 424 P.2d 772 (1967); People v. Anderson, 177 Colo. 84, 492 P.2d 844 (1972).

Allowance of appeal from judgment by default. An appeal is allowable from the county court to the district court from a judgment by default on two conditions: First, that the party aggrieved make application to have the judgment by default set aside within 10 days after its rendition; and, second, that the appeal be taken within 10 days, or the time allowed by the court, after the refusal of the court to set aside the default. Johnson v. Lawson, 9 Colo. App. 128, 50 P. 1087 (1897); County Court v. Eagle Rock Gold Mining & Reduction Co., 50 Colo. 365, 115 P. 706 (1911).

Appeal from part of judgment permissible. Where a personal judgment was rendered in the county court against the lessees of a mining claim which was declared to be a lien against the mine, the owners of the mine could appeal to the district court from that part of the judgment declaring the lien without appealing from the entire judgment and without making the defendants, against whom personal judgment was rendered, parties to the appeal. Davidson v. Jennings, 27 Colo. 187, 60 P. 354 (1900).

Objection to jurisdiction of district court on appeal may be waived. Plaintiff was nonsuited in the county court, and, without making a motion to set aside the nonsuit according to this section, he appealed to the district court. The defendant's motion to dismiss the appeal being there denied, he appeared as though there were no irregularities in the proceedings, and, without taking an exception to the ruling, renewing his objection or standing upon his motion, introduced witnesses, etc. It was held that he waived objection to the jurisdiction of the district court. Norton v. Young, 6 Colo. App. 187, 40 P. 156 (1895).

When a felony case starts in county court pursuant to § 16-5-101 (1)(c) and is resolved by a plea to only misdemeanor charges, it is a county court matter and an appeal must be made to the district court. People v. Vargas-Reyes, 2018 COA 181, 434 P.3d 1198.

III. ACTION OF THE DISTRICT COURT.

Under the statute, the district court, upon appeal of the case to it, has three threshold alternatives: (1) It may review the case on the record; (2) it may remand the case for a new trial with instructions to the court from which appealed, or (3) it may direct that the case be tried de novo before it. People v. Williams, 172 Colo. 434, 473 P.2d 982 (1970).

The general assembly, having provided for both review on the record and for trial de novo, recognized the historical differences between the two both procedurally and in substance, so it is incumbent on the courts to make the same differentiation in carrying out their functions under the statute. People v. Williams, 172 Colo. 434, 473 P.2d 982 (1970).

A trial de novo conducted by the district court is not a review of the county court judgment; it is an entirely new proceeding. Bovard v. People, 99 P.3d 585 (Colo. 2004).

A trial de novo in a court of general jurisdiction, in the absence of statutory language restricting its scope, means a trial in the commonly accepted sense of that term in such court. Any court conducting such a trial may make its own findings and judgment. People v. Williams, 172 Colo. 434, 473 P.2d 982 (1970).

The district court would have the power to make new and independent findings of fact if it were acting as a trial court. The statute provides a procedure whereby the district court can act as a trial court rather than as a court of review, if it directs the case be tried de novo before it. People v. Williams, 172 Colo. 434, 473 P.2d 982 (1970).

Only in cases tried de novo by the district court will the district court judgment be subject to direct appeal. Justifiably, then, the defendant may seek direct appeal when the district court enters its judgment from a de novo trial. Bovard v. People, 99 P.3d 585 (Colo. 2004).

The final judgment of the district court, following a trial de novo, thus, is subject to review by the court of appeals under both § 13-4-102 and this section. Bovard v. People, 99 P.3d 585 (Colo. 2004).

Where the district court does not direct that the case be tried de novo before the district court, as it might do pursuant to subsection (2), the appeal is limited to review of the record on appeal and a consideration of the accompanying briefs and arguments. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971).

It is bound by the findings of the trial court. The district court is reviewing the record on appeal from the county court and is bound by the findings of the trial court which have been determined on disputed evidence. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971).

The function of the reviewing court is to correct any errors of law committed by the trial court and not to try, nor retry, issues of fact. The lack of sufficient competent evidence to support a finding of a material fact, however, would be a matter of law and fall within the court's powers on review. People v. Williams. 172 Colo. 434, 473 P.2d 982 (1970).

It cannot act as a fact finder. Where the district court is exercising its powers of review rather than conducting a trial de novo, it cannot act as a fact finder. People v. Williams, 172 Colo. 434, 473 P.2d 982 (1970).

Proper appeal from district court action is by writ of certiorari to the supreme court, and not by appeal to the court of appeals. Gallagher v. Ingram, 32 P.3d 50 (Colo. App. 2001).

IV. APPEALS TO SUPREME COURT.

Certiorari review does not suffice as an appellate review from a final judgment of the district court. Bovard v. People, 99 P.3d 585 (Colo. 2004).

Subsequent appeal to the supreme court only on certiorari. Appeal to the supreme court from a determination of the district court in a matter appealed to such court from the county court may be made only on a writ of certiorari issued in the discretion of the supreme court. People ex rel. City of Aurora v. Smith, 162 Colo. 72, 424 P.2d 772 (1967); People ex rel. Union Trust Co. v. Superior Court, 175 Colo. 391, 488 P.2d 66 (1971).

It must be distinguished from constitutional certiorari. The writ of certiorari mentioned in § 3 of art. VI, Colo. Const., is to be distinguished from, and not to be confused with, the statutory writ of certiorari provided for in this section. Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 37 (1970).

"Further appeal" not limited to review of affirmances. The legislative authorization for "further appeal" is not limited to cases where the superior court's determination would otherwise end the matter, as in an affirmance of the trial court's judgment. People v. Dee, 638 P.2d 749 (Colo. 1981).

Review of superior court's reversal permitted. The state supreme court may review by certiorari a superior court's reversal of a county court judgment. People v. Dee, 638 P.2d 749 (Colo. 1981) (decided prior to abolition of superior courts in 1986).

For the supreme court granting certiorari, see Eyrich v. People, 161 Colo. 554, 423 P.2d 582 (1967).

Applied in Lucero v. Goldberger, 804 P.2d 206 (Colo. App. 1990); Byrd v. People, 58 P.3d 50 (Colo. 2002).