Error to the Court of Appeals.

Messrs. STUART & MURRAY, for Nesbit.

Mr. ROBERT M. WORK, Pro se.

Messrs. GOUDY & TWITCHELL, and Mr. J. H. BURKHARDT, for defendant in error.

Mr. JUSTICE BAILEY delivered the opinion of the court:

The matter for consideration is a motion to dismiss a writ of error sued out of this court to review a decision of the court of appeals, affirming a judgment of the district court of the city and county of Denver, in a cause wherein The SigelCampion Live Stock Company was plaintiff, and Alexander Nesbit, as sheriff, was defendant, in which action Robert M. Work, trustee in bankruptcy, intervened. The district court dismissed the intervention petition of Work. At the trial there was a jury verdict, upon which judgment was ordered, allowing plaintiff to retain possession of the property in dispute, and awarding one dollar, as damages for the unlawful taking and detention thereof, with costs. The suit is in replevin, and it is admitted by the pleadings that the property in controversy is of the value of $14,000.00.

The act creating the court of appeals has been upheld by this court as constitutional. People ex rel. v. Scott et al., 120 Pacific (Colo.) 126. All of the provisions are to be therefore treated as in full force, and given effect according to their plain and undoubted meaning. By sections 4 and 5 thereof provision is made for the transfer of causes pending in the supreme court, on appeal or error, to the court of appeals, making the decision of the court of appeals in all such cases, except as specified in section 6 of the act, final and conclusive. That portion of section 6 which directly relates to the matter under consideration is as follows:

"Section 6. Provided, however, that in causes thus transferred from the supreme court to the court of appeals,

whether pending on appeal or error, wherein the decision necessarily involves the construction of a provision of the federal or state constitution or relates to a franchise or freehold, or a judgment for more than $5,000, exclusive of costs, such decision thereof by the court of appeals shall not be final. Such cases may be reheard in the supreme court by writ of error from the latter court, under rules to be adopted by it."

The contention, in support of the motion to dismiss, is that the matter sought to be reviewed falls within none of the exceptions found in section 6, since the decision neither involes a construction of a provision of the federal or state constitution, nor relates to a franchise or freehold, nor to a judgment for more than $5,000.00, exclusive of costs. On the other hand it is urged that, as the pleadings show the value of the property involved to be $14,000.00, the judgment is reviewable by this court.

The provision relating to reviews by the supreme court of certain court of appeals decisions is so clear, simple and direct that it needs no construction. It has, and can have, but one meaning, nor can that meaning be in the least in doubt. In plain and unmistakable language it provides for a review of any decision of the court of appeals which necessarily involves a construction of either a provision of the federal or state constitution, or relates to a franchise or freehold, or to a judgment for more than $5,000.00, exclusive of costs, and of no other. The judgment last referred to in the provision under consideration is one which, in terms, is measured by an award in dollars, not by the amount involved in the suit or the value of the property in controversy. The provision reads precisely so. That such is its meaning is not debatable. The statute says where the judgment is "for more than $5,000, exclusive of costs." That means an actual money judgment for more than the sum mentioned; no other meaning can be fairly given it. With the wisdom, policy or justness of the law this court has nothing to do; those were matters for the legislature to consider and settle. Nor had the court power or authority to

read into the statute something which plainly is not there. If the law as it now stands proves inexpedient, relief must be sought by legislation. Courts are powerless to give it. Their province and function is to interpret and enforce the law as found, not to change and modify old laws, and thus, by strained and unwarranted construction, virtually make new

ones.

By section of the legislative act of 1891, creating the original court of appeals, it was provided:

"Section 1. No writ of error from, or appeal to, the supreme court shall lie to review the final judgment of any inferior court, unless the judgment, or in replevin, the value found exceeds two thousand five hundred dollars, exclusive of costs. Provided, This limitation shall not apply where the matter in controversy relates to a franchise or freehold, nor where the construction of a provision of the constitution of the state or of the United States is necessary to the determination of a case."

cant.

It is to be observed that by this provision for reviews of the decisions of the former court of appeals, it is expressly provided that where in replevin the value found exceeded $2,500.00, exclusive of costs, a review might be had. The fact that no such provision is found in the present statute is signifiThe only reasonable conclusion is that the provision was omitted advisedly. Otherwise, had the purpose been to allow a review in such cases, the legislature would have provided, after the manner of the old statute, that where in replevin the value of the property exceeded a certain sum the writ of error should lie. Or if a review had been intended, where the amount involved was more than $5,000.00, it would have been so declared. But nothing of the sort was done; the statute provides for a review only where there is a judgment for more than $5,000.00. So that, from every standpoint, the conclusion must be that no review of a decision of the court of appeals was intended, and none has been provided for, where a consideration of a provision of the federal or state constitution

is not necessarily involved, or where it does not relate to a franchise or a freehold, except of a money judgment in excess of $5,000.00, exclusive of costs.

Since the question involves the construction of a particular statute, failure to cite authorities in point occasions no surprise. Indeed, precedents are not needed to support the conclusion reached.. The duty of the court is to give effect to the statute, according to the ordinary and usual meaning of its language, in which view it is obvious that the motion must be sustained, and the writ dismissed. Judgment is ordered accordingly.

Decision en banc.

CHIEF JUSTICE CAMPBELL not participating.

[No. 7264.]

MUNSON ET AL. V. PAWNEE CATTLE CO.

1. JUDGMENT-Recitations of Record-Where a judgment record recites, generally, service of summons upon the defendant, not showing the manner of the service, but the summons shows a mode of service which is bad, the recitals of the record will be rejected and the judgment declared void.

2. JUDGMENT-Presumptions-One relying upon a judgment as the foundation of the title to lands, produces a judgment roll. It contains a summons which bears no authentic evidence of service. No presumption will be indulged that there was another summons.

3. SHERIFF-Serving Summons in Another County-The sheriff loses his official character when he passes out of his own county. In serving a summons in another county he acts merely as an individual, and the service must be shown by his affidavit. His mere return, unsworn, is no evidence of the service, and judgment rendered upon such return of service, not otherwise shown, is void.

Appeal from Logan District Court.-Hon. H. P. BURKE, Judge.

4

Messrs. ALLEN & WEBSTER, for appellants.

Messrs. MCCONLEY & HINKLEY, for appellee.

Mr. JUSTICE GARRIGUES delivered the opinion of the

court:

I. This action was brought by The Pawnee Cattle Company against T. E. and H. E. Munson, to quiet title to a 160 acre tract of land in Logan county, of which it is alleged plaintiff is the owner in fee simple, in possession, and defendants claim an adverse interest therein. The title of both parties originates in the following manner with The Municipal Debenture Company, a foreign corporation which owned the land. Gillett, who owned several hundred tax deeds, brought an action in Logan county against 67 defendants, including the Debenture Company, to quiet his tax titles. The land in controversy was not involved in the Gillett action, but it was levied upon and sold on execution, to pay the costs of that suit, and about April 15, 1903, the sheriff gave a deed to it; which is the basis of The Pawnee Cattle Company's title. October 25, 1907, the Debenture Company deeded the same land to Ryan; which is the source of defendants' title. The question is, which one of these titles is paramount? This is a collateral attack, and if the court had jurisdiction in the Gillett action, the title by the sheriff's deed through the Debenture Company is the better; or, stated in another way, the title of the defendants is good, unless it was taken out of the Debenture Company by the sheriff's deed. It is claimed by appellants that an inspection of the judgment roll in the Gillett action, introduced in this case by appellee, shows that the Gillett judgment, which is the basis of the sheriff's deed, is void. That case went by default without any appearance by the Debenture Company, and the whole question, on collateral attack in this action, is whether an inspection of the judgment roll in that action shows the court pronounced judgment without having acquired jurisdiction over the Debenture Company. This de