Beckett v. Cuenin

• Decision Date: 07 November 1890
• Citation: 15 Colo. 281,25 P. 167
• Parties: BECKETT et al. v. CUENIN.
• Court: Colorado Supreme Court

25 P. 167

15 Colo. 281

BECKETT et al. v. CUENIN.

Supreme Court of Colorado

November 7, 1890

Commissioners' decision. Appeal from Gunnison county court.

In July, 1886, the plaintiff, Cuenin, started this case in the county court of Gunnison county, by filing in that court an undertaking and an affidavit for attachment. The summons and writ of attachment were issued. The summons recited substantially that the plaintiff demanded judgment for $1,000, with interest at 10 per cent. from June 12, 1884, for attorney's fees amounting to 10 per cent. of the note and for costs of suit. Subsequently, and in September, the plaintiff filed an affidavit in the following words 'Dexter T. Sapp, being duly sworn, says that he is the attorney for the plaintiff in the above-entitled cause. That this action is brought to recover of the defendants the sum of one thousand one hundred twenty 97-100 dollars upon two promissory notes of $500 each, dated August 14, 1884, with interest thereon at the rate of ten per cent. per annum from said date, and also ten per cent. attorney's fees, as provided in said notes. That said William D. Beckett and John M. Beckett compose the copartnership of said Beckett Bros. That upon the 17th day of July, A. D. 1886, a writ of attachment was issued in this cause, and placed in the hands of the sheriff of said Gunnison county for service. That on said day a writ of summons was issued in this cause in due form, subscribed, 'Brown & Sapp, Attorneys for Plaintiff,' which summons was placed in the hands of the sheriff of Gunnison county for service upon said defendants. That the defendants William D. Beckett and John M. Beckett now reside at Hastings, in the county of Clay, state of Nebraska, as deponent is informed by Louis Boisot, of Gunnison, Colorado, said Boisot having been the attorney of said Becketts, and as deponent also believes from having received letters from said defendants which were mailed at said Hastings. That at no time since the issuing of summons in this case has either of said defendants been within the state of Colorado. That the sheriff of Gunnison county has returned to this court the summons issued herein and placed in his hands for service as aforesaid, with his indorsement thereon, to the effect that he cannot find the said defendants in his county. That personal service of said summons can be had upon said defendants at said Hastings, in the state of Nebraska, but cannot be had upon either of them in the state of Colorado, as deponent is informed as aforesaid, and as he believes. That the defendants are a necessary and proper party to the action for the reasons (1) that there are no other defendants and no other person or persons liable for the debt sued for; (2) that, by virtue of the writ of attachment issued in this cause, real property owned by one of said defendants, and situate in the county of Mesa, in this state, and debts owing to said defendants, have been attached by garnishment in the said county of Gunnison and, without some kind of service of summons in this cause it will be impossible to have the property and debts so attached applied towards the payment of the claim in this cause sued for. Wherefore, affiant asks that an order may be granted that the service of said summons be made by the publication thereof. Subscribed and sworn to before me this 21st day of September, A. D. 1886. EDWARD P. COLBORN, Judge and Acting Clerk.' As a matter of fact the affidavit was not signed, although the statement of the verification recites its subscription. The order for publication was made and publication was had, and in March, 1887, after making proof of the mailing of two copies of the summons to the two defendants, and a showing therein that no appearance had been entered for the defendants, a default was entered by the judge and acting clerk of the court, and afterwards, and on the same day, according to the recital of the judgment, viz.: 'Upon application to the judge and acting clerk by Brown & Sapp, attorneys for said plaintiff, judgment is hereby entered against said defendants, in pursuance of the prayer of said complaint; wherefore, by virtue of the law and by reason of the premises...