Behymer v. Nordloh

• Decision Date: 08 March 1889
• Citation: 12 Colo. 352,21 P. 37
• Parties: BEHYMER et al. v. NORDLOH.
• Court: Colorado Supreme Court

21 P. 37

12 Colo. 352

BEHYMER et al. v. NORDLOH.

Supreme Court of Colorado

March 8, 1889

Appeal from county court, Arapahoe county.

This action was commenced before a justice of the peace in April 1883, by the issuance and service of a summons in the statutory form. The justice of the peace did not record in his docket the nature of the debt sued for, but did note that the amount was $80. At the time fixed for trial, plaintiff failing to appear, was nonsuited, and thereupon the plaintiff appealed to the county court. Both parties appeared in the county, court, and went to trial without objection, and plaintiff recovered judgment for $93.65. This was nearly two years after the commencement of the action. Defendants thereupon prayed an appeal to this court, and their appeal-bond was duly filed and approved. Nearly a month thereafter, defendants filed their motion in arrest of the judgment so rendered, upon grounds in substance as follows (1) That the justice had no jurisdiction of the subject-matter of the action for the reason that the record and proceedings of the justice did not state the nature of the debt sued for, and that for the same reason the county court had no jurisdiction on appeal; (2) that the judgment was in excess of the amount sued for, as appearing on the justice's docket; (3) that a justice of the peace has no jurisdiction of a cause where a guardian or minor is plaintiff, and that the county court cannot acquire jurisdiction of such a cause by appeal; (4) that the suit was not in the name of the minor by his guardian. The assignments of error are substantially like the motion in arrest of judgment.

E. P. Harmon and W. W. Cover for appellants.

J. F. Shafroth, for appellee.

ELLIOTT J., ( after stating the facts as above.)

Were the question res nova in this state, there would be ground for contending that the statute (Gen. St. § 2061) requiring the justice to record in his docket 'the amount and nature of the debt sued for' was mandatory, and that its omission was a fatal jurisdictional defect. The doctrine announced in Home v. Duff, 5 Colo. 574, and Smith v. Aurich 6 Colo. 388, relating to courts of record, bears a close analogy to that contended for by the appellants in this action, but the decisions as to courts not of record are the other way; and it is held that the omission of the justice to record the aforesaid matters in his docket may be supplemented by proofs aliunde. It is true that, if the justice has no jurisdiction over the subject-matters of a cause, the county court acquires none by virtue of an ex parte appeal, where the appellee insists in apt time upon his objection against the jurisdiction; but it is different where the parties voluntarily...