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ficer placed a deputy in charge of the property upon the premises where he found it.

The sole matter remaining to be considered relates to the apportionment of costs. Counsel for plaintiff in error insists that the court should have taxed the costs of the intervention proceeding against Flanders.

The ruling of the court below on this question was probably predicated upon the doctrine announced in Bartels v. Hoey, 3 Colo. 279. It is there held that where an appeal is dismissed because the appellate court is without jurisdiction, no judgment touching costs can be entered. This view is logical; it rests upon the idea that there can be no judgment of any kind where there is no jurisdiction. See authorities. cited in Bartels v. Hoey; also, Bradstreet Co. v. Higgins, 114 U. S. 262; Mazange v. Slocum, 23 Ala. 668; Hopkins v. Brown, 5 R. I. 357; Millard v. Board of Education, 116 Ills. 23.

The correctness of the foregoing as a general principle is, however, vigorously challenged. Kent v. Board of Co. Com'rs, 42 Kans. 534, and cases cited. And this court has shown a strong disposition to avoid somewhat its harsh though logical results. A judgment for costs upon dismissal of condemnation proceedings for want of jurisdiction has been expressly sustained. The D. W. & P. Ry. Co. v. Church, 7 Colo. 143. The latter view is predicated upon the just and reasonable proposition that he who brings another against his will into a court having no jurisdiction, and thus occasions useless annoyance and expense, should at least suffer the inadequate penalty of payment of the costs.

But it is now unnecessary to explain or reconcile the two Colorado cases mentioned, or to announce a preference between the foregoing views, both of which are supported by a long list of able decisions. For no doubt exists of the legislative authority to regulate the matter by statute. This authority is recognized in Bartels v. Hoey, as well as in other

cases.

The provision authorizing such interventions as the one at

bar (sec. 2711, Mills' Ann. Stats.) declares, inter alia, that "if the judgment be in favor of the attaching creditor, the latter shall recover his costs of the claimant." A judgment of dismissal for want of jurisdiction is a judgment in favor of the attaching creditor. No adjudication of the right of property has taken place, but the result, so far as the proceeding dismissed is concerned, is as decisive in favor of the attaching creditor as would have been a judgment on the merits. Plausible speculation sustaining a different view might be predicated upon previous language employed in the But giving the entire statute a liberal interpretation for the purpose of effectuating the real intent of its framers, we shall hold that the costs of the intervention should have been taxed against Flanders.

same section.

If, however, it could be correctly said that the extract above given from sec. 2711 only applies where the right of property is adjudicated, the result upon the question of costs would be in no wise different. For in that event sec. 2688, Mills' Ann. Stats., would be pertinent. This section, when applicable, settles the question beyond possible controversy. It reads as follows: "If it shall appear (in the appellate court), however, that the justice has no jurisdiction of the subject-matter of the suit, the same shall be dismissed at the cost of the plaintiff."

Chancery courts always possess a large discretion in the apportionment of cost, and doubtless a statute might confer similar power upon courts of law. But both of the statutes considered simply enact and apply, to the causes and proceedings affected, the usual common law rule.

Some courts adopt the practice of striking a case from the files whenever want of jurisdiction over the subject-matter is disclosed. But the plan of entering judgments of dismissal in such cases, while perhaps less strictly logical, is in some respects more satisfactory and is extensively followed. Even were the latter course not expressly commanded by the statute last above mentioned, we would be loth to criticise the mere form of procedure adopted in this regard.

For the error in refusing to tax the costs against the intervenor, the judgment must be reversed. But save the entry of the proper judgment in the premises, no further proceedings upon the plea of intervention are deemed necessary. The cause will be remanded with directions that judgment for costs be entered in accordance with the views above expressed.

Reversed.

17 16 19 389

17 16 11a 174 12a 213

IRWIN V. CROOK AND Beman.

1. BONDS MUST BE DELIVERED.-Delivery is undoubtedly essential to the validity of bonds, regardless of the object for which they are given.

2. APPROVAL OF STATUTORY BONDS.-The main, if not the exclusive purpose in requiring the approval of statutory bonds by a designated officer is to protect the obligee, whether such obligee be an individual or the public.

3. DELIVERY OF STATUTORY BOND WITHOUT APPROVAL.-The delivery of a statutory bond may (in the absence of affirmative statutory words in effect declaring the unapproved instrument a nullity), be sufficiently complete without the official approval to bind the sureties, where the officer has entered upon the discharge of his duties to the public, or where the obligee has in words or by conduct indicated his satisfaction therewith, and through reliance thereon has placed himself in a less favorable attitude.

4. STATUTORY AND OFFICIAL BONDS SUBJECT TO SAME RULES.-Appeal bonds, replevin bonds, and the like, are classified with technical official bonds, and in the absence of statutory differences are subject to the same general rules of law.

5. WAIVER OF APPROVAL BY OBLIGEE.—Where a statute requires that the sureties upon an appeal bond shall be approved by the court, it is competent for the obligee to waive such approval. And if the waiver clearly appear the instrument is binding upon the sureties, though not formally approved.

6. APPROVAL OF APPEAL BONDS.-The statute simply directs the approval of appeal bonds by the court or clerk; it does not specify the manner of approval.

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The

7. POWER OF COURT TO MODIFY ORDER IN APPEAL CASES.
court has power at the same term to annul or modify a former or-

der so as to extend the time for filing an appeal bond, and authorize the approval to be by itself instead of the clerk.

8. In the absence of an unmistakable legislative intent to make the approval an absolute sine qua non to the validity of a statutory bond for any purpose, the approval provision is not so far mandatory as to be a shield for the protection of fraud. And if the surety voluntarily executes an appeal bond and delivers it unconditionally to the principal therein named, and the principal without condition delivers it to the clerk who receives it and files it and it is during the same term approved by an order of court, if appellee without fault on his part relying upon its validity in good faith litigates the appeal and incurs additional labor and expense, the sureties are estopped, in a suit on the bond by the obligee, from setting up a secret understanding with the clerk.

Error to District Court of Lake County.

IN January, 1883, a money judgment was rendered by the county court of Lake county in favor of plaintiff in error, Jeremiah Irwin, and against George E. and John King. The Kings undertook to perfect an appeal to the district court. In pursuance of statute the county court entered an order fixing the time within which the appeal bond should be filed, and directing the clerk to approve the same. Within the time thus designated, the Kings presented to the clerk a bond apparently perfect in all respects, being duly signed and sealed by themselves as principals and by defendants in error, Crook and Beman, together with one Brossier, as sureties. This bond was deposited with the clerk and marked by him as filed on the 8th of February, 1883. He declined, however, to indorse upon the instrument his approval in writing, because, as he claimed, the sureties should have justified before him instead of before a notary public.

Afterwards, and on the 26th day of February during the same term of the county court, on motion of counsel for the Kings, the court by an order of record vacated its former order with reference to the bond so far as the approval by the clerk was concerned, and entered the approval by the court. nunc pro tunc as of the said 8th of February. The appea. was then treated by the parties as taken, and the requisite VOL. XVII.-2

transcript and papers were duly forwarded to the district court. Judgment being obtained in the latter court against the Kings and the same remaining unpaid, the present suit was instituted upon the bond against the principals and sureties therein named. The court found in favor of the sureties, Crook and Beman. To review the judgment entered upon this finding, the present writ of error was sued out.

On the trial evidence was received, showing that after the bond had been deposited with the clerk of the county court, and by him filed as aforesaid, he agreed with Cook and Beman that he would not indorse his approval thereon. He entirely neglected to notify either plaintiff in error, Irwin, who was the obligee in the bond, or the judge of the county court, or any other person, of this understanding or agreement. Nor did Crook or Beman inform either appellee or the judge of this understanding, and both acted in total ignorance thereof.

Other material facts sufficiently appear in the opinion.

Mr. N. ROLLINS, for plaintiff in error.

Messrs. RUCKER & EWING, and Mr. A. T. GUNNELL, for defendants in error.

CHIEF JUSTICE HELM delivered the opinion of the court.

Delivery is undoubtedly essential to the validity of a bond, whether it be given in perfecting an appeal or for some other purpose. In providing for statutory bonds, the law usually directs that some official, who is a disinterested third party, shall approve the sufficiency of the sureties executing the It is contended in the present case that the omission of the clerk's approval from the appeal bond, coupled with his assurances to the sureties, avoided all liability on their part to the obligee. The correctness of this contention cannot be conceded.

same.

First. The approval of a statutory bond by a designated

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