Crary v. Barber

• Decision Date: 01 July 1869
• Citation: Crary v. Barber, 1 Colo. 172 (Colo. 1869)
• Parties: CRARY v. BARBER.
• Court: Colorado Supreme Court

1 Colo. 172

CRARY v. BARBER.

Supreme Court of Colorado

July, 1869

Error to District Court, Gilpin County.

Mr. E T. WELLS, for plaintiff in error.

Messrs JOHNSON & TELLER, for defendants in error.

HALLET C. J.

The motion to dismiss the writ of error has not been argued, and perceiving no reason for allowing it, we proceed at once to consider the errors assigned. The plaintiff in error claims that he was not served with process or otherwise legally notified of the pendency of suit in the court below. If this is true, the judgment must be reversed, inasmuch as a court has not authority to render judgment without notice to the party to be charged thereby. Nor can we indulge in a presumption that the plaintiff in error was duly notified of the proceedings against him, or that he appeared in the district court in the absence of record evidence of that fact. Rany et al. v. The Governor, 4 Blackf. 2; Anderson v. Brown, 9 Mo. 638.

There were several writs issued out of the district court, all of which were returned non inventus as to the defendant named therein except one, to which the sheriff returned, that the defendant had accepted service and subsequently modified his return as follows: 'I do further return that the service made on said defendant, Beebe D. Crary, was made by reading to said Beebe D. Crary the name of the plaintiff in said writ and the amount claimed, and when and where the said defendant was to answer the complaint of the plaintiff.'

The statute regulating the service of writs of attachment requires the sheriff to read the writ to the defendant named therein, or to deliver to him a true copy thereof, and it is not contended that personal service can be obtained except in one of these ways. It is said, however, that the sheriff complied with the statute substantially by reading to the plaintiff in error the material facts contained in the writ, but we cannot agree to this. The sheriff said nothing to the plaintiff in error of the ground upon which the attachment issued, the filing of the affidavit and bond and other facts set forth in the writ. But if the contents of the writ had been fully stated to the plaintiff in error, the language of the writ must have been used or the service would not be effectual. The law prescribes the form of the writ, and commands the sheriff to read it, or furnish a copy of it, and this duty must be faithfully performed. We cannot permit a sheriff to substitute his own language for that of the writ, or to cull from the writ such facts as he believes to be material for the information of the defendant named therein and communicate them to him. The law provides for communicating to the defendant in the writ the language of the writ and the whole of it, trusting to his intelligence to comprehend its meaning, and without this there is no service. The principle upon which this point must be decided has been frequently recognized by the courts, and we do not think it necessary to discuss it at length. Maher v. Bull, 26 Ill. 348; Chickering v. Failes, id. 519; Halsey v. Hurd et al., 6 McLean, 14.

A notice of the pendency of the suit was published in a newspaper for twenty days, but as the statute requires such notice to be published for four weeks, it was not claimed upon the argument that such publication was in any way effectual.

The transcript of the record contains a motion filed in the district court by the plaintiff in error, which probably ought not to be noticed, since it has not been preserved in the record by bill of exceptions or otherwise. Pomeroy's Lessee v. Bank of Indiana, 1 Wal. (U. S.) 592; McDonald v. Arnout, 14 Ill. 58; Douglas v. Park et al., 43 id. 146.

If however, it is claimed that we have cognizance of it, we do not perceive that by filing written objections to the manner of serving the process, the plaintiff in error entered his appearance to the action, especially as he limited his appearance to the purpose of the motion. Malcolm v. Rogers, 1 Cow. 1; Nye...