
    Austin et al. v. Bush.
    Where defendants in an action of replevin do not appear, relying' upon the assurance of the constable, to whom they give up the property, that they need do nothing further, and that he will'have the suit dismissed, there is not such diligence as entitles them to certiorari to the county court, under General Statutes, 1883, section 1995, relating to certiorari.
    
    
      Error to Arapahoe County Court.
    
    The facts are stated in the opinion.
    Mr. C. H. Toll, for plaintiffs in error.
    Messrs. Bentley and Vaile, for defendant in error.
   De France, C.

On the 5th of January, 1883, the defendant in error obtained judgment against the plaintiffs in error, in a justice of the peace court, in the county of Arapahoe. On the 17th of March, 1883, the plaintiffs in error filed a petition in the county court of said county, asking that the action in which said judgment was rendered be removed to said county court by writ of certiorari, which was done. The defendant in error after-wards filed a motion to .quash the writ of certiorari, and to dismiss the proceedings had and taken in pursuance thereof, on the grounds — First, that the petition for said writ does not show that the judgment before the justice of the peace was not the result of negligence of the party praying for such writ; second, that the petition does not show that said judgment was unjust; third, that the petition does not show that it was not in the power of the defendants to take an appeal in the ordinary way. This motion was sustained by the court, and a final judgment entered, dismissing the proceedings upon such writ, and awarding a procedendo to such justice’s court. The case is brought here by a writ of error to the county court, and the only question to be decided is whether the petition for the writ of certiorari was sufficient to warrant the issuance thereof.

The action was one of replevin to recover the possession of sleigh-bells alleged to be of the value of $18. The only facts stated in the petition for the writ of certiorari, to show that the judgment was not the result of negligence on the part of the petitioners, are as follows: That, when the constable came to them to serve the writ of replevin, they delivered the sleigh-bells to such constable, stating to him that they did not wish to defend the suit, and that they would pay the costs; tha't the constable thereupon promised them that he would deliver the sleigh-bells to the plaintiff, have the action dismissed, and that he would come to them for the costs as soon as he could ascertain their amount;‘ that they inquired of said constable whether it was necessary for them to appear before the justice in said actiou, or to do anything further therein, and that he informed them it was not; that they relied upon the promise of such officer, and supposed the suit had been dismissed, and knew not to the contrary until the 8th day of March following. No additional reasons or facts are stated to show it was not in their power to take an appeal in the ordinary way. The judgment rendered by the justice was to the effect that the plaintiff retain the property, and have and recover the sum of $50 damages for the detention thereof. It seems incredible that damages to that extent could accrue simply on account of detaining property alleged in the affidavit for replevin to be worth only $18. How a justice or court, acting under the obligations of a solemn oath, could render such an unconscionable judgment is beyond our conception. But, notwithstanding this hardship and injustice, we are compelled to follow the uniform, and, as we think, proper, construction given to the section of the statute which authorizes the writ of certiorari in such cases. This statute is designed for exceptional cases, and gives this additional remedy, by certiorari, to those, and those only, who fairly come within its provisions. The law, in general, requires at least ordinary diligence of those who claim its protection, and especially of parties litigant. But it is said that before a party is entitled to the benefit of the writ of certiorari, under the section of law in question, he must ‘ ‘ use something more than ordinary diligence to perfect his appeal ” in the ordinary way (Lord v. Burke, 4 Gilman, 367); and the same degree of care, we imagine, should be exercised to prevent the judgment in the first instance. The "facts stated in their petition show a want of even ordinary diligence on the part of plaintiffs in error, both before and after the judgment complained of was rendered against them. To rely upon the mere promise of the constable is not sufficient. And the failure of the officer, under the promise made, to notify them within a reasonable time of the amount of the costs in the case, should at least have induced an inquiry into the matter upon their part; and, even without such failure on the part of the officer, they should have made proper inquiry, in apt time, as to what disposition had been made of the suit. Tilton v. Association, 6 Colo. 288, and cases there cited.

The court below committed no error in dismissing the writ of certiorari and awarding a procedendo. The judgment should be affirmed.

Rising and Stallcup, CO., concur.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment of the county court is affirmed.

Affirmed.  