Atchison, T. & S. F. R. Co. v. Nicholls

• Decision Date: 20 March 1885
• Citation: 6 P. 512,8 Colo. 188
• Parties: ATCHISON, T. & S. F. R. CO. v. NICHOLLS.
• Court: Colorado Supreme Court

6 P. 512

8 Colo. 188

ATCHISON, T. & S. F. R. CO. v. NICHOLLS.

Supreme Court of Colorado

March 20, 1885

Appeal from county court, Bent county.

Chas. E. Gast, for appellant.

John E. Pitt, for appellee.

HELM J.

This action was brought against the appellant company, to recover damages for an alleged injury to plaintiff's person caused by the negligence of the company's employes or servants. The negligence complained of consisted in so operating a locomotive and cars as to come in contract with a baggage or express truck of defendant's, standing upon its depot platform at Los Animas, thereby causing the said truck to strike the plaintiff's person with force and violence, and wound him. The sum of $500 as damages was demanded in the complaint. A special appearance was entered by defendant, and two motions were filed within the statutory time for pleading: one to quash the summons; the other to quash the return of the sheriff thereon. While these motions were pending and undisposed of, the court entered a default for want of an answer against defendant. Some 13 days thereafter, and in term time, on motion of plaintiff, both of defendant's motions were stricken from the files. Upon plaintiff's motion, also, the summons was amended; and on the next day a judgment was rendered against defendant upon the default theretofore entered.

All these matters appear from the record proper and no bill of exceptions was needed to preserve them neither was an exception to the judgment nor a motion for new trial a necessary prerequisite to a review in this court of alleged errors resting upon them. Therefore, appellee's position, that we should not examine the questions presented, is incorrect. Sections 35 and 37 of the Civil Code, prescribing what the summons shall contain, are mandatory. Smith v. Aurich, 6 Colo. 388, and cases cited. The latter section provides that a notice shall be inserted in the writ in substance as follows:

' First. In an action arising on contract, for recovery of money or damages only, that the plaintiff will take judgment for a sum specified therein if defendant fail to answer the complaint. Second. In other actions, that if the defendant fail to answer the complaint the plaintiff will apply to the court for the relief demanded therein.'

As already stated, this action was brought to recover damages for a tortious injury; no contract was pleaded or mentioned; yet the notice to defendant in the summons was: 'If you fail to appear and answer the complaint, as above required, the said plaintiff will take judgment against you for said sum of five hundred dollars, with interest and costs.' This was no compliance whatever with said section 37; and, under the authorities, the process was fatally defective. The summons should have notified defendant that, in case of failure to answer, plaintiff would 'apply to the court for the relief demanded' in the complaint. Holding, as we must, that the statute is mandatory, the foregoing conclusion is inevitable. And if there be any force to the argument that it is unreasonable, and at times productive of hardship, legislative aid must be invoked. The attempted amendment of the summons in this particular after entry of default, without notice and in the absence of defendant, was futile. As amended, the summons was never served upon defendant, and no opportunity was given to respond thereto.

Section 35, above mentioned, requires that the writ embody a statement of 'the cause and general nature of the action.' The process in this case informs defendant that 'the said action is brought to recover the sum of five hundred dollars, due from defendant to plaintiff upon certain damages claimed to have been incurred by plaintiff by reason of the negligent operating of said road, its locomotives and appurtenances, by its agents and servants, particularly described in the complaint.' This is not a sufficient statement of the cause and general nature of the action. Defendant is not in the slightest degree apprised as to what the 'certain damages' mentioned consist of. For aught that appears in the...