Comet Consol. Min. Co. v. Frost

• Decision Date: 05 December 1890
• Court: Colorado Supreme Court
• Parties: COMET CONSOLIDATED MIN. CO. v. FROST.

25 P. 506

15 Colo. 310

COMET CONSOLIDATED MIN. CO. v. FROST.

Supreme Court of Colorado

December 5, 1890

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 170 P.3d 742

Commissioners' decision. Error to district court, Arapahoe county.

Hugh Butler, for plaintiff in error.

RICHMOND C.

Defendant in error, plaintiff below, instituted this action to recover the sum of $6,687.77, with interest at the rate of 10 per cent. per annum from the 17th day of December, 1885 evidenced by a promissory note. The proceedings in this case were based upon the act of 1885 entitled 'An act to amend an act providing a system of procedure in civil actions in the courts of justice of the state of Colorado, approved March 17, 1877.' In pursuance of this act a summons was issued, signed by the attorney of plaintiff, addressed to the defendant and served upon J. Granville Sharp, vice-president of the defendant company, in Denver, Arapahoe county, Colo. On the 28th day of December, 1885, a complaint was filed which is in the following words and figures: 'State of Colorado, county of Arapahoe--ss.: In the district court. Henry C. Frost, Plaintiff, vs. The Comet Consolidated Mining Company, Defendant. The plaintiff complains of the defendant and alleges that on the 17th day of December, A. D. 1885, at Denver, in the county of Arapahoe and state of Colorado, the said defendant by its promissory note of that date, by it duly executed, for value received, promised to pay, to the order of said plaintiff, one day after the date thereof, the sum of six thousand six hundred and eighty-seven 77-100 dollars, with interest at ten per cent. per annum until paid and delivered said note to the plaintiff, who is now the holder and owner thereof; that although said note is long since past due, and although often requested, the said defendant has not paid the same, nor any part thereof. Wherefore the plaintiff demands judgment against said defendant for the sum of six thousand six hundred and eighty-seven 77-100 dollars, with interest thereon at ten per cent. per annum from the 17th day of December, 1885, until paid, and costs of this suit. GEO. C. NORRIS, Attorney for Plff.' Thereafter, on the 25th day of January, A. D. 1886, in vacation, judgment of default, and final judgment, was entered by the clerk of said district court for the full amount claimed, together with interest and costs. To reverse this judgment plaintiff in error prosecutes this writ. Appellant contends: First. That the summons heretofore recited is not in conformity with the constitution of the state of Colorado, in this, that it does not run in the name of the 'people of the state of Colorado;' that it is a 'process' coming within the provisions of the constitution. Second. That the summons was served on the 24th day of December, 1885; that complaint was not filed until the 28th day of December; that under and by the terms of the summons, defendant was not expected to answer until the 4th day of January, 1886, and in support of this contention it is insisted that the summons stated that the complaint would be filed in the clerk's office on the second Monday after service of summons, if served in Arapahoe county. Third. That the summons was served on the vice-president of the company, and that the return on the summons does not show that the president was not then in the county of Arapahoe, and state of Colorado. The foregoing are the principal points discussed by plaintiff in error.

As to the first point raised, that the summons is such a process as must be issued in the name of the people of the state of Colorado, we are strongly inclined to follow the conclusion of the supreme court of Florida in Gilmer v. Bird, 15 Fla 411. In this case the identical question here presented is discussed at some length,--that is, 'that the summons, as authorized by the Code, is a 'process' within the meaning of the constitutional provisions which require the style of all process to be the 'State of Florida;' that the summons had no such style; that this was essential to the validity of the judgment, there having been no appearance.' And the court said: 'But is a notice given by an attorney of the institution of a suit in a form similar to a summons, but not issuing out of a court, a 'process' within the meaning of the constitution? Baron Comyn, in giving the definition of the term 'process,' says it imports the writs which issue out of any court to bring the party to answer, or for doing execution. There is no definition of 'process,' given by any accepted authority, which implies that any writ or method by which a suit is commenced is necessarily 'process.' A party is entitled to notice and to a hearing under the constitution before he can be affected, but it is nowhere declared or required that that notice shall be only a writ issuing out of a court.' In Porter v Vandercook, 11...