
    County Commissioners of Pitkin County, Appellants, v. The Aspen Mining & Smelting Company, Appellee.
    An appeal to the supreme court from the judgment of a county court for costs only, perfected before passage of the act creating the court of appeals, is governed by the law in force at the time the appeal was taken notwithstanding its subsequent transfer to the latter court.
    
      Appeal from County Court of JPitJcin County.
    
    Mr. C. D. Wilson, for appellants.
    Mr. W. W. Cooley, for appellee.
   Richmond, P. J.

By the record in this case it appears that a judgment was rendered for the defendant below, appellee herein, for costs only. From this judgment an appeal was prosecuted and a transcript was filed September 3,1889, in the supreme court of Colorado.

June 30, 1891, the cause was transferred from the submission docket of the supreme court to that of the court of appeals. Under the act of 1887, appeals to the supreme court were allowable only when the judgment amounted, exclusive of costs, to the sum of one hundred dollars, or related to a franchise or freehold. Hence the supreme court was without jurisdiction to entertain the appeal. Repeated decisions have been rendered sustaining this position. “The proceeding being jurisdictional cannot be waived or cured by consent of the parties.” Code, par. 388; Crane v. Farmer, 14 Colo. 294; Meyer v. Brophy, 15 Colo. 572; Sons of Amer. B. & I. Ass'n v. City of Denver, 15 Colo. 592.

If this case had been appealed to this court subsequent to its creation by statute, it may be that it would be our duty to consider it upon its merits, but, inasmuch as the appeal was perfected under the act of 1887, we do not think a transfer of the cause confers upon us any other jurisdiction than that resulting from the appeal which had already been taken under the existing statutes.

The appeal is accordingly dismissed.

Dismissed.  