FOR convenience we hereinafter refer to these parties as Smith and Elliott.
Elliott sued Smith in justice court on a money demand for $30 and had judgment. Smith appealed to the county court. There Elliott appeared specially and moved to dismiss on the ground, inter alia, that the appeal bond was insufficient. The motion was sustained, and to review the judgment entered accordingly this writ is prosecuted. The only error assigned is the dismissal.
[1-4] The appeal bond must be in a sum double the amount of the judgment and costs. C. L. 1921, p. 1619, § 6172. This bond was not. Counsel for Smith answers that the motion to dismiss was not verified "and there is no proof of the fact," i. e., that the bond was thus defective. The bond and the transcript of the justice are both before us and disclose the fact indubitably. That is the proper, and best, proof. Counsel says the bond could have been amended. It could. C. L. 1921, p. 1620, § 6178; McKee v. Bassick Mining Co., 8 Colo. 392, 394,8 P. 561. But the judgment was entered February 26, and Smith had ten days from that date within which to file his bond. C. L. 1921, p. 1618, § 6171. It was filed March 5. The motion to dismiss was heard March 22. The record discloses no application for leave to amend, or for additional time, or other move to remedy the defect. The appeal was therefore properly dismissed on this ground and we need not consider the other reasons given.
The judgment is affirmed.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE HOLLAND concur.