
    Colby v. Birch.
    
      District Court of Arapahoe County,
    
    
      May 3, 1898,
    
    
      No. 27,306.
    
    R. Howzer, attorne}? for plaintiff; Geo. F. Dunk-lee, attorney for defendant.
   Johnson, J.

It appears that this case was originally brought in the county court upon an overdue promissory note in which an attachment writ was obtained on an affidavit that the said Samuel Birch, the defendant, by false representation and false pretenses, and by fraudulent conduct, procured the property of the plaintiff, the said Willis W. Colby.

In examining the records and pleadings this language of the affidavit applies wholly to certian allegations in the complaint that the defendant falsely and fraudulently secured possession of a certain note deposited as collateral security for the payment of the above note sued on, all of which, to my mind, has nothing whatever to do with the subject matter of the action, and is at variance with the subject of the action as stated in the summons; and, therefore, is no ground of attachment under the issues herein, and that the dismissal of the attachment writ by the county court, upon traverse, was properly made. Aside from this issue, it appears from the record that the plaintiff obtained the full amount of his judgment and costs against the defendant.

The defendant files a motion to dismiss the appeal on the ground that the plaintiff cannot appeal from a judgment in his favor for all that he sued for.

The statute provides that “appeals may be taken to the district court of the same county from all final judgments and decrees of county courts, except judgments by confession, by any person aggrieved by any such final judgment or decree. * * * ” i Mills Ann. St., § 1085.

The record shows that plaintiff not only appealed from the final judgment, but also appealed from the interlocutory order dismissing the writ of attachment made and disposed of before any final judgment was entered. Under this statute only final judgments can be appealed to the district court; but when such appeal is properly taken a trial de novo follows in the district court, in which all interlocutory matters of pleading and practice are subject to review.

Counsel contends that his object for appealing this action is to bring up the question of dismissal of the attachment by the county court and the striking out of certain portions of the complaint, otherwise he has no fault to find with the judgment.

It is held under several decisions of the appellate and supreme courts that a party cannot appeal from a judgment in his favor, under the acts controlling appeal from courts of record, to the supreme and appellate courts. Hall v. The P. R. M. Co., 6 Colo. 81; Valetta v. Smelting Co., 11 Colo. 204; Harvey et al. v. Travelers’ Insurance Co., 18 Colo. 354; Bogert et al. v. Adams, 5 Colo. App. 510; Booth v. Domestic Water Co., 49 Pac. (Colo.) 368.

Especially for the sole purpose of reviewing interlocutory orders; that the remedy is by writ of error. The language used in the appeal act from county to district courts is “Any party aggrieved by a final judgment shall have the right to appeal.” Counsel argues that the word “aggrieved” refers to any and all matters relating to the trial of the cause, including interlocutory as well as final order. I do not think this proposition is borne out by the authorities above cited; that the word “aggrieved” alone relates to the final judgment and no party can be held to be aggrieved who has obtained all that he asks for, or could obtain, on final judgment.

There is another decision of the supreme court, however, relating to appeals from the justice of the peace courts to county courts, which indicates that a party obtaining a judgment has the right to appeal, notwithstanding he has obtained a judgment in his favor for the full amount prayed for for the purpose of reviewing ancillary matters as well as the main issues.

This decision, however, rests upon the proposition that the statute providing for appeals from justice of the peace courts to county courts is broad enough to include all judgments. Hurtgen v. Kantrowitz et al., 15 Colo. 442.

I do not think, however, that this decision overthrows the fundamental principle that where a party has the right to appeal only from final judgments when aggrieved, having obtained all the relief asked for by such final judgment, can be heard to complain and is therefore estopped to have his case retried in a higher court, except .by writ of error.

In addition to this the entire record being before the court, upon its face shows that there is nothing to re-adjudicate which can be made more favorable to the plaintiff than what he has already obtained.

I think the motion to dismiss the appeal should be sustained and it is so ordered.  