Hendricks v. Gates

Full title: HENDRICKS, JUSTICE OF THE PEACE v. GATES ET AL

Court: Supreme Court of Colorado. In Department

Date published: Nov 19, 1934

37 P.2d 1094 (Colo. 1934)

37 P.2d 1094

Opinion

No. 13,626.

Decided November 19, 1934.

Action involving writ of certiorari. Writ issued.

Reversed. On Application for Supersedeas.

1. CERTIORARI — Justice of the Peace. Application for a writ of certiorari to review the action of a justice of the peace in granting a continuance, held premature.

2. Final Judgment. It is only a final judgment of a lower court that can be reviewed on certiorari.

Error to the County Court of Kit Carson County, Hon. Clarence L. McGee, Judge.

Mr. C. W. DOLPH, for plaintiff in error.

Mr. LOUIS VOGT, for defendants in error.

MR. JUSTICE BUTLER delivered the opinion of the court.

LUCIAN Youtsey brought suit before Jack Hendricks, a justice of the peace in Kit Carson county, against C. C. Gates and J. N. Andrews. By agreement of the parties, the case twice was continued for trial. Youtsey applied for a third continuance. The application was resisted by Gates and Andrews, but was granted by the justice of the peace. Thereupon Gates and Andrews applied to the county court for a writ of certiorari. The writ was issued and a transcript of the record and proceedings was transmitted to the county court. Holding that the justice of the peace had abused his discretion in granting the third continuance, the county court rendered judgment directing the justice of the peace to dismiss the Youtsey suit. Thereupon the justice of the peace sued out this writ of error.

[1, 2] The case never had been tried before the justice of the peace and, of course, no judgment had been rendered by him. The order continuing the case for trial was merely an interlocutory order. The proceedings in the county court were premature. It is only a final judgment of a lower court that can be reviewed on certiorari. Schwarz v. County Court, 14 Colo. 44, 23 Pac. 84; People, ex rel. v. County Court, 26 Colo. 478, 58 Pac. 591; People, ex rel. v. District Court, 28 Colo. 218, 64 Pac. 194; Foster v. Nickles, 88 Colo. 71, 291 Pac. 1040.

Judgment reversed and cause remanded with direction to the county court to dismiss the certiorari proceeding.

MR. CHIEF JUSTICE ADAMS and MR. JUSTICE BOUCK concur.