Fletcher v. Stowell

• Citation: 17 Colo. 94,28 P. 326
• Parties: FLETCHER et al. v. STOWELL.
• Decision Date: 30 November 1891
• Court: Supreme Court of Colorado

28 P. 326

17 Colo. 94

FLETCHER et al. v. STOWELL.

Supreme Court of Colorado

November 30, 1891

Error to Lake county court.

Action by Ellery Stowell against William Fletcher and John A Gerelds to foreclose a mortgage. Judgment for plaintiff. Defendants bring error. Affirmed.

The other facts fully appear in the following statement by ELLIOTT, J.:

This was an action brought by Stowell in the county court of Lake county for the foreclosure of a mortgage of real property situate in Eagle county. The defendants, being personally served with summons, made default, and thereupon a decree was rendered providing for a sale of the mortgaged premises cutting off the interest of the defendant Gerelds as second mortgagee, and directing that, if the proceeds of the sale were insufficient to satisfy the mortgage debt, the plaintiff have judgment and execution for the balance against the defendant Fletcher. The defendants bring the record to this court by writ of error. The provisions of the Code of Civil Procedure specially referred to in the opinion are as follows: 'Sec. 25. Except when otherwise provided actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this act * * * Third. For the foreclosure of a mortgage of real property. * * * Sec. 29. The court may, on good cause shown, change the place of trial in the following cases: First. When the county designated in the complaint is not the proper county.'

Syllabus by the Court

1. No territorial limit is fixed by the constitution to the civil jurisdiction either of the district courts or of the county courts.

2. As to matters within the jurisdiction of county courts, their records are supported by the same presumptions and intendments of law as the records of district courts.

3. The provisions of the Code concerning the place of trial of civil actions are applicable to county courts as well as to district courts.

4. The bringing of an action in an improper county is not a jurisdictional or fatal defect; the remedy is to apply to the court to change the place of trial, and the duty of making such change does not devolve upon the court of its own motion.

5. Before it is incumbent upon the court to change the place of trial good cause must be shown by the party applying, and this remedy is a privilege which may be waived, as by failing to appear.

Rucker & Ewing, (Wm. Fletcher, pro se,) for plaintiffs in error.

S.D. Walling, (Ellery Stowell, pro se,) for defendant in error.

ELLIOTT, J., ( after stating the facts.)

The several assignments of error question the jurisdiction of the county court on the ground that the property embraced in the mortgage sought to be foreclosed was wholly situate in a county different from the one in which the court was held. Before the adoption of the Code the common-law distinction between local and transitory actions was more or less definitely preserved in this jurisdiction, and a mistake in laying the venue of a cause was often fatal to the maintenance of the action. The constitution of the state adopted in 1876 confers original jurisdiction of all causes upon the district courts, and provides that the county courts shall have unlimited original jurisdiction in certain matters, and such other civil and criminal jurisdiction as may be conferred by law within certain limits as to the amount of the debt, damage, claim, or value of property involved. No territorial limit is fixed by the constitution to the civil jurisdiction either of the district courts or of the county courts. Const. art. 6, §§ 11, 23. By statute jurisdiction has been conferred upon the county courts, concurrent with the jurisdiction of the district courts, in all civil actions, suits, and proceedings, subject to the constitutional limit as to amount and value as aforesaid. The county courts are courts of record, and as to matters within their jurisdiction under the constitution and laws of this state their records are supported by the same presumptions and intendments of law as the records of district courts. 1 Mills' Ann. St. § 1054; Hughes v. Cummings, 7 Colo. 141, 2 P. 289, 298; Dusing v. Nelson, 7 Colo. 187, 2 P. 922; Behymer v. Nordloh, 12 Colo. 352...