Brown v. Tucker

• Decision Date: 04 December 1883
• Citation: 1 P. 221,7 Colo. 30
• Parties: J. S. BROWN and others v. L. R. TUCKER.
• Court: Colorado Supreme Court

1 P. 221

7 Colo. 30

J. S. BROWN and others v. L. R. TUCKER.

Supreme Court of Colorado

December 4, 1883

As a demurrer runs through the whole series of pleadings, and will be sustained to the first defective pleading, the sufficiency in law of an answer will be legitimately raised by the filing of a demurrer to the replication.

Where service of summons by publication is made by publishing the summons the first time on September 7th, and the last time on October 6th, such publication is sufficient, under section 42 of the Code, to give the district court jurisdiction, as provided by section 46; but as the defendant has 40 days to answer after the service is complete, a judgment entered 12 days thereafter is immaturely entered.

Where jurisdiction has been obtained by the service of process actual or constructive, all subsequent proceedings are exercise of jurisdiction, and, however, erroneous, are not void, but voidable only, and not subject to collateral attack.

Where an attachment in aid of a suit at law has been sued out, and proper service is made by publication, a judgment in personam subsequently rendered cannot be held invalid in a collateral proceeding.

Error to the district court of Lake county.

Decker & Yonley, for plaintiffs in error.

Markham, Patterson & Thomas, for defendant in error.

BECK C.J.

The questions presented by this record arise upon the pleadings and involve the sufficiency of the answer and replication. A demurrer to the answer was overruled by the court below, and a demurrer to the replication sustained.

The foundation of the action is a judgment of the district court of Arapahoe county in favor of Brown & Bro., plaintiffs in error, against one A. H. Collins, which judgment in alleged to have perfected a lien in favor of said plaintiffs upon a stock of goods owned by the defendant Collins. Tucker, the defendant in error, who was also defendant below, was sheriff of Lake county, and as such officer, seized the goods upon a writ of attachment issued by the district court of Arapahoe county in the case of Brown & Bro. against Collins, and duly levied said writ thereon. After judgment in the latter action Tucker sold the goods, upon a special execution issued from the county court of Arapahoe county, and to him directed as sheriff of Lake county, upon a junior judgment, rendered by said county court, in favor of the German National Bank of Denver against said Collins. Subsequently, he returned an execution, afterwards issued upon the judgment of Brown of Bro., nulla bonna.

The defense set up by Tucker, in his answer to the complaint in the present action, is substantially that the judgment in favor of Brown & Bro. is void because it is a judgment in personam, rendered upon constructive service only, and also because it was entered prematurely. The defendant likewise justifies under the special execution in favor of the German National Bank of Denver.

So far as the replication is concerned, we have only to say that it is certainly a remarkable pleading, and in our opinion fully warrants the criticism passed upon it by counsel for defendant in error, who say: 'The demurrer to the answer was argued at length and overruled, upon which our learned friends reduced their argument of the demurrer to writing, filed it in the cause, and called it a replication.' The replication is clearly bad, but we cannot agree with defendant's counsel that this conclusion terminates our investigation, and that nothing remains but to affirm the judgment of the court below.

The errors assigned are-- First, the sustaining of the demurrer to the replication; second, giving judgment upon said demurrer for the defendant in error, when, upon the whole record, judgment thereon should have been for the plaintiffs in error. A rule applicable to every system of pleading is that a demurrer runs through the whole series of pleadings, and will be sustained to the first defective pleading. The objections to the answer, therefore, are not waived, as supposed, by the fact that a replication thereto has been filed, since a demurrer was subsequently filed to the replication. On the contrary, the sufficiency in law of the answer was legitimately raised by the filing of the last-mentioned demurrer. We will therefore proceed to test the sufficiency of the answer. This involves an inquiry as to the validity of the judgment of Brown & Bro. against Collins, the answer alleging fatal irregularities to have occurred in the entry of said judgment.

The objection that the judgment was prematurely entered is based upon the fact that the only service of process upon Collins was by the publication of the summons, the first publication of which was on the seventh of September, 1880, and the last publication thereof on the sixth of October, 1880, and that judgment by default was rendered against him on the eighteenth day of October, 1880, or 12 days after the last publication.

That the service by publication was complete, and that the district court acquired jurisdiction of the cause before the entry of the judgment, is expressly declared by statute. When personal service cannot be made upon a defendant, section 42 of the Code requires the summons to be published in a public newspaper at least once a week for four successive weeks. The section concludes thus: 'And, in case of publication, the service of summons shall be deemed complete at the expiration of ten days after the expiration of the time prescribed for publication.'

Section 46 provides that 'from the time of the service of the summons in a civil action the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings.'

No distinction is made by this section as to the manner of service of the summons upon the defendant, and the language necessarily includes service in either of the ways provided by the preceding sections. Where service by publication is relied on, it must be in a case and under circumstances wherein that mode of acquiring jurisdiction is authorized by the statute, and the material requirements of the statute must be strictly complied with.

A point is made by counsel for defendant in error that a copy of the summons was not deposited in the post-office by the clerk of the district court, directed to Collins at his place of residence, as required by section 42. We cannot consider this point, for the reason that it does not properly arise in the case. The section only requires a copy of the commons to be so deposited 'where the residence of a non-resident or absent defendant is known.' The answer does not allege that the residence of Collins was known, nor does it raise the objection that a copy of the summons was not deposited in the post-office. So far, then, as the objections stated in the answer are concerned, there was a literal compliance with the requirements of the statute in respect to the service of the summons, and, in the language of section 46, the court must be deemed to have acquired jurisdiction and to have had control of all subsequent proceedings.

But, notwithstanding the foregoing conclusion, the judgment against Collins was prematurely entered. We have held, in two cases, that where service is obtained by publication of the summons, the defendant has 40 days to answer the complaint after the service is complete. Conley v. Morris, 2 Colo. Law Rep. 452; Skiles v. Baker, 3 Colo. Law Rep. 201. This is a question of statutory construction, and was passed upon by the district court, as appears from the recital in the judgment, 'that the legal time for answering having expired,' etc.

In the decision of this point the court erred, and in a direct proceeding to review the judgment it would have to be reversed for error. But the judgment is collaterally drawn into question here and a different rule obtains, which is, that unless it is absolutely void the error complained of is not available in this proceeding.

The decided weight of authority is to the effect that when jurisdiction has been obtained by the service of process, actual or constructive, all subsequent proceedings are exercise of jurisdiction, and, however erroneous, they are not void, but voidable only, and not subject to collateral attack. Freem. Judgm. §§ 126, 135, 142, and notes; Cooper v. Reynolds, 10 Wall. 315.

Counsel for defendant in error take the position that the judgment is void upon another ground, viz.: 'Because it purports to be a personal judgment rendered upon publication of process and that the mere fact that property was attached under our statute cannot impart any vitality to it for any purpose whatever.' The opinion of the supreme court of the United States in Pennoyer v. Neff, 95 U.S. 714, is cited and relied upon by counsel to sustain this position. In our judgment it not only fails to sustain the position assumed, but shows clearly that the law is otherwise. It is true, the court held that the judgment brought under consideration in that case was void, but there is a marked distinction between the proceeding in that case and the proceeding in the case which we are now considering. That was the case of a judgment recovered in one of the state courts of Oregon against a non-resident defendant. The action was...