We overlooked, in our original consideration of this writ of error, the point made by plaintiff in error that the plaintiff Zamp in the county court waived the objection that the required bond had not been filed. After the appeal had been docketed in the county court, plaintiff, without objection to the jurisdiction, moved for and obtained a judgment on the pleadings which was reversed in this court. Lamon v. Zamp, 81 Colo. 90, 253 P. 1056. The case having been remanded and set for trial, the plaintiff, when it was called for trial, moved to dismiss the appeal for want of the statutory additional bond. The present counsel were not employed until after the remand.
We think we are compelled by the former decisions of this court to say that the want of bond was waived. The county court had jurisdiction of the subject matter, the case might originally have been brought there, the only objection was to the proceedings in coming there and that might be waived, and was waived by proceeding in the appellate court without objection to the jurisdiction.Edwards v. Smith, 16 Colo. 529, 530, 27 P. 809; Lyonv. Washburn, 3 Colo. 201; Behymer v. Nordloh, 12 Colo. 352,21 P. 37.
Counsel for defendant in error argue that these cases were on defective bonds and not total lack of bond, but *Page 297 their logic is the same, i. e., that, since the appellee submitted his case without objection to the jurisdiction to a court which had jurisdiction of such a cause, he cannot afterwards be heard to say that the case was not properly brought before such court.
The case of Erbaugh v. Fields, 77 Colo. 254,235 P. 568, is not to the contrary. There was no question of waiver there. It was as if in the present case Zamp's first move in the county court had been to dismiss the appeal.
In Horn v. Martin, 38 Colo. 364, 87 P. 1073, the appellee was careful to appear specially, and so in Adamsv. Decker, 50 Colo. 236, 114 P. 654. There is no escape from the conclusion that the judgment must be reversed.
Judgment reversed with directions to overrule the motion to dismiss the appeal and proceed with the case.
MR. JUSTICE ADAMS not participating.