Burnett v. Meyer
| Decision Date | 04 May 1925 |
| Docket Number | 11212. |
| Citation | 236 P. 994,77 Colo. 272 |
| Parties | BURNETT v. MEYER. |
| Court | Colorado Supreme Court |
Department 2.
Error to Kiowa County Court; W. M. Ramsdale, Judge.
Proceeding by J. W. Burnett against P. O. Meyer to contest an election. From an order dismissing the contest, plaintiff brings error.
Reversed and remanded, with directions.
john H Voorhees, of Pueblo, and Gordon & Gordon, of Lamar, for plaintiff in error.
M. G Saunders, E. F. Chambers, and John A. Martin, all of Pueblo and James C. Lang, of Eads, for defendant in error.
At the general election in November, 1924, the plaintiff in error was a candidate for the office of county commissioner of Kiowa county, and defendant in error was a rival candidate for the same office. On the face of the returns, defendant in error was elected by a majority of five votes.
Plaintiff in error instituted an election contest. A summons was duly issued, and service thereof had, or attempted to be made, under that clause of section 40 of the Code of 1921 providing that a summons may be served by leaving a copy thereof at the usual place of abode of defendant with some member of the family in which he resides.
Within 10 days thereafter the defendant in error, the contestee, filed a motion to dismiss the contest upon the ground of lack of service of the summons, and at the same time filed his answer to the statement of contest, which answer included a counter statement of contest. Thereafter the contestor filed his reply.
When the cause came on for trial, the court first considered the motion to dismiss, and sustained such motion before proceeding to any trial upon the merits. The case was accordingly dismissed by the court. The contestor brings the cause here on writ of error, and applies for a supersedeas.
Error is assigned to the court's sustaining the motion to dismiss. If in fact, which we do not concede, there was no service of summons, or the service was defective, service was waived by contestee when he filed his answer and counter statement. Under the Code, § 50, a voluntary appearance is 'equivalent to personal service.' There is a long line of cases in this state to the effect that by a general voluntary appearance, and filing an answer is such appearance, all objections to the summons and return thereof, and to the jurisdiction of the court over the person of the defendant, are waived. Campbell Mfg. Co. v. Marsh, 20 Colo. 22, 32, 36 P. 799; New York & Brooklyn M. Co. v. Gill, 7 Colo. 100, 2 P. 5: Colo. Cent. R. Co. v. Caldwell, 11 Colo. 545, 19 P. 542; Ruby Chief Min. Co. v. Gurley, 17 Colo. 199, 29 P. 668; Union P. Ry. Co. v. De Busk, 12 Colo. 294, 20 P. 752, 3 L.R.A. 350, 13 Am.St.Rep. 221; Kurtze v. McCord, 1 Colo. 164. See 4 C.J. 1365.
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Burnett v. Meyer
...which was dismissed for want of service. That judgment was reversed here, and the cause remanded for trial on the merits. Burnett v. Meyer, 77 Colo. 272, 236 P. 994. The county court found Meyer elected by a majority of votes and entered judgment accordingly. To review that judgment Burnett......