Gibson v. Foster

Decision Date15 September 1913
Citation24 Colo.App. 434,135 P. 121
PartiesGIBSON v. FOSTER.
CourtColorado Court of Appeals

Appeal from District Court, Kiowa County; J.E. Rizer, Judge.

Action by Charles E. Gibson against George S. Foster. Judgment for defendant, and plaintiff appeals. Affirmed.

John F. Mail, of Denver, for appellant

Crane &amp Patrick, of Pueblo, for appellee.

MORGAN J.

Appeal from a judgment of the Kiowa district court for defendant in an action for the possession of three separate tracts of land. Complaint filed February 24, 1909. Defendant recovered a judgment on the strength of a decree of said court, pleaded in defense, quieting his title, and made long prior to this action, in which the plaintiff's immediate grantors were parties, with the exception that one grantor's name, A.S Deleplane, as to one of the tracts, appears in the judgment roll and in the pleaded decree as A.L. Deleplane; and with the further exception of the plaintiff's grantor of lots 1 and 2, and the east half of the northwest quarter of section 7, township 18, range 43, who obtained the title after said decree was made, by a valid tax deed.

An examination of the tax deed aforesaid discloses no defects on its face, and, as no evidence was offered or introduced as to any defects without the deed, the court made no error in admitting it as valid. It was, no doubt, an oversight that the court afterwards rendered a judgment for defendant as to all the tracts involved.

Plaintiff's title to the tract conveyed to him by A.S. Deleplane, who received a patent in the name of Albert S. Deleplane, is not affected by said decree, because the decree and the judgment roll including the publication of summons disclose that the name used in every instance is A.L. Deleplane. The variance in the name of this defendant is too great to permit jurisdiction of the person, in this instance, in the absence of any appearance, and of any evidence on the subject, except the decree and the judgment roll, including the affidavit and publication of summons. Although this is a collateral attack, the decree has no binding effect on plaintiff's title, as the court had no jurisdiction of Deleplane, who held the title when the decree was obtained and afterwards conveyed to plaintiff. Empire R. & C. Co. v. Coldren, 51 Colo. 117, 122, 117 P. 1005.

Courts are cautious in permitting jurisdiction of the person where service is made by publication. The reports of this and other states are replete with decisions construing such statutes, and few disclose greater caution than the recent reports of this court and the Supreme Court. Bloomer v. Cristler, 22 Colo.App. 238, 240, 123 P. 966; Norris v. Kelsey, 23 Colo.App. 555, 557, 130 P. 1088; Empire R. & C. Co. v. Coldren, supra; Millage v. Richards, 52 Colo. 512, 515, 122 P. 788.

The middle name or initial in a person's name has become quite material in modern times, especially as a distinguishing identification of the person. Many persons now have the same Christian, or given, name, and the same patronymic, family, or surname, and it is by the middle name or initial, only, in many instances, that the person may be distinguished or identified in writing. Turner v. Gregory, 151 Mo. 100, 52 S.W. 234; Bank v. Bank, 3 Colo.App. 17, 19, 21, 31 P. 122; Bank v. Bank, 5 Colo.App. 427, 39 Pac. 71; Wood v. Reynolds, 7 Watts & S. (Pa.) 406; Bowen v. Mulford, 10 N.J.Law, 230, 232; Terry v. Sisson, 125 Mass. 560, 561; Dutton v. Simmons, 65 Me. 583, 20 Am.Rep. 729; Esther Hutchinson's Appeal, 92 Pa. 186.

There is no presumption that Albert S. and A.L. Deleplane, or that A.S. and A.L. Deleplane, are the same person. State v Higgins, 60 Minn. 1, 61 N.W. 816, 27 L.R.A. 74, 51...

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4 cases
  • State v. Dunn
    • United States
    • Kansas Supreme Court
    • 25 Marzo 1925
    ...in writing. . . . There is no presumption that Albert S. and A. L. Deleplane, or that A. S. and A. L. Deleplane, are the same person." (p. 436.) Ambs v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 44 Minn. 266, 46 N.W. 321, it was said: "But while, under many circumstances, it has been ......
  • Sheesley v. Voorhees
    • United States
    • Colorado Court of Appeals
    • 15 Septiembre 1913
  • Gepford v. Burge
    • United States
    • U.S. District Court — District of Colorado
    • 16 Mayo 1925
    ...appears that the title stood in John Werner, can it be said without other proof that there is identity of the person? In Gibson v. Foster, 24 Colo. App. 434, 135 P. 121, the court considered a case where there was a decree quieting the title to land, based upon publication of the summons ag......
  • Robinson v. Clauson
    • United States
    • Colorado Supreme Court
    • 18 Abril 1960
    ...of process, wherein it appeared that the published notice failed to correctly state the name of the defendant.' In Gibson v. Foster, 24 Colo.App. 434, 135 P. 121, it was held that a decree purporting to quiet title in plaintiff as against a named defendant, A. L. Deleplane did not preclude ......

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