Barndollar v. Patton
| Decision Date | 01 April 1879 |
| Citation | 5 Colo. 46 |
| Parties | BARNDOLLAR ET AL. v. PATTON. |
| Court | Colorado Supreme Court |
Error to County Court of Pueblo County.
THE case is stated in the opinion.
Mr THOMAS T. PLAYER, for plaintiffs in error.
Mr. A B. PATTON, pro se.
It is assigned for error, first: that the second summons was issued more than thirty days after the filing of the complaint. Sec 30 of the Code provides that at any time within one month after the filing of the complaint the plaintiff may have a summons issued. This clearly refers to the summons first issued in the case. The Code makes no provision for an alias summons. The Supreme Court of California, in considering a like feature of the Code of that State, in the case of Dupuy v. Shear, 29 Cal. 240, say: If any importance were to be attached to the dictum above quoted respecting an alias summons, that 'There is no necessity for one,' it must be taken to apply only to a case where the writ is sufficient in the first instance, and where it is capable of performing the office for which it was issued. Indeed, in the very case from which we quote the above, it became necessary to issue a new summons, for the reason that the first one was lost by the officer before it was served. Where the writ is fatally defective, or has been issued without autority, or for any other reason it is incapable of effectuating its purpose, and for such reason is quashed, or otherwise fails in performing its office, it is manifest that another writ is necessary. If them, under our Code, this contingency should happen after the expiration of thirty days from the issuance of the summons, it would be a most impotent conclusion to hold that there was not inherent power in the court, in the absence of statutory provision, to award an alias or new writ. And in the case of Dupuy v Shear, supra, the court further on, per SAWYER, J., say: ...
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Rarden v. R. D. Baker Co.
...alias summons. In a somewhat similar case, it was held in Farris v. Walter, 2 Colo.App. 450, 31 P. 231, 232: ‘In that case [Barndollar v. Patton, 5 Colo. 46], the court held that an alias writ could issue where the first writ had proven defective, and had been quashed upon motion. Such is n......
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Hill v. Fruita Mercantile Co.
...the claim was for $414.18, which would satisfy the statute if it was necessary for the affidavit to contain such an allegation. Barndollar v. Patton, 5 Colo. 46; Hughes v. Brewer, 7 Colo. 583, 4 P. The further claim that the evidence introduced upon the hearing of the traverse was insuffici......
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Myers v. Myers, 15296.
...provided by the foregoing statute, is an essential prerequisite to the county court's exercising jurisdiction in such cases. Barndollar et al. v. Patton, 5 Colo. 46; v. Tritch et al., 6 Colo. 432; Bloomer v. Jones, 22 Colo.App. 404, 125 P. 541; Hughes v. Brewer, 7 Colo. 583, 4 P. 1115. If s......
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COLORADO RULES OF CIVIL PROCEDURE
...(1980).C. Nature of Action. Early provision required summons to state ''the cause and general nature of the action''. Barndollar v. Patton, 5 Colo. 46 (1879) (decided under repealed Civil Code 1887, § 34). By a subsequent proviso it became no longer necessary. Burkhardt v. Haycox, 19 Colo. ......
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Rule 4 PROCESS.
...(1980). C. Nature of Action. Early provision required summons to state "the cause and general nature of the action". Barndollar v. Patton, 5 Colo. 46 (1879) (decided under repealed Civil Code 1887, § 34). By a subsequent proviso it became no longer necessary. Burkhardt v. Haycox, 19 Colo. 3......
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RULE 4
...(1980).C. Nature of Action. Early provision required summons to state "the cause and general nature of the action". Barndollar v. Patton, 5 Colo. 46 (1879) (decided under repealed Civil Code 1887, § 34). By a subsequent proviso it became no longer necessary.Burkhardt v. Haycox, 19 Colo. 339......