Brooks v. Farwell

• Court: U.S. District Court — District of Colorado
• Citation: Brooks v. Farwell, 4 F. 166 (D. Colo. 1880)
• Decision Date: 20 October 1880
• Parties: BROOKS and others v. FARWELL and others.

4 F. 166

BROOKS and others v. FARWELL and others.

United States Circuit Court, D. Colorado.

October 20, 1880

for plaintiffs.

for defendants.

HALLETT D.J.

Brooks and the Purdy Silver Mining Company brought suit in the district court of Arapahoe county against John V. Farwell and another, in March last. Farwell appeared and filed a motion to quash the summons, or service of the summons, alleging in an affidavit accompanying the motion that he had been in attendance upon court in another suit brought by one of the plaintiffs, and that he was a resident and citizen of the state of Illinois, and had come here necessarily for that purpose, and so was exempt from service while in attendance on the court. Upon hearing that motion the court denied it, but gave leave to the defendant to set up the same facts in an answer in the nature, it is said, of a plea in abatement. Thereafter the cause was removed into this court, and the plaintiff now asks for judgment, claiming that the answer cannot be received; that it is not according to the course of pleading under the Code that any answer that may be filed must go to the complaint and that nothing can be averred against the summons, or service of the summons, by way of answer. As to that question, it must be assumed that that was passed upon in the district court of Arapahoe county, in overruling the motion to quash the service of the summons. In allowing the defendant to file an answer setting up the same matters, the court must have held that...