Harris v. Municipal Court of City & County of Denver

• Decision Date: 21 May 1951
• Docket Number: No. 16337,16337
• Citation: 234 P.2d 1055,123 Colo. 539
• Parties: & COUNTY OF DENVER et al. Supreme Court of Colorado, en Banc
• Court: Colorado Supreme Court

Page 1055

234 P.2d 1055

123 Colo. 539

HARRIS v. MUNICIPAL COURT OF CITY & COUNTY OF DENVER et al.

No. 16337.

Supreme Court of Colorado, en Banc.

May 21, 1951.

Rehearing Denied July 16, 1951.

Darwin D. Coit, Denver, for plaintiff in error.

J. Glenn Donaldson, Abe L. Hoffman, Denver, for defendants in error.

STONE, Justice.

The complaint in this action discloses that Harris was arrested by police officers within the City and County of Denver and there charged in the municipal court with the violation of certain sections of a city ordinance. He gave bond for his appearance the following day, at which time he appeared, accompanied by counsel. He was then advised as to the sections and ordinance alleged to have been violated, pleaded not guilty and, without objection, went to trial. Thereupon, after interrogation at some length of one of the arresting officers, continuance was requested in behalf of the city, and over objection of Harris a fifteen-day continuance was granted.

A few days thereafter, Harris' attorney inspected the files in the case and ascertained therefrom that the complaints on file were purportedly verified by the officer, but not signed by him. Such fact being then noted by the deputy clerk, the complaining officer promptly signed the complaints. Motion for dismissal was then made in behalf of Harris on the grounds that no complaint had been filed with the clerk at the time the trial was begun, and that the granting of a continuance constituted abuse of discretion. This motion was denied and Harris thereupon instituted the present action in the district court, seeking dismissal of the proceeding in the municipal court on the ground that said court had exceeded its jurisdiction and abused its discretion. The municipal court appeared by counsel and upon its motion judgment of dismissal was entered.

As first ground for reversal, it is urged that the municipal court had no jurisdiction, because no warrant or summons was served on Harris. The sole purpose of a warrant or summons was to bring defendant into court and, even if required in case of arrest for violation of ordinance committed in the presence of the arresting officer, it was waived by appearance and going to trial without objection on that ground. People v. Weiss-Chapman Drug Co., 10 Colo.App. 507, 51 P. 1010; Lloyd v. Canon City, 46 Colo. 195, 103 P. 288. The fact that defendant gave bond, and subsequently appeared in order to avoid confinement in jail, does not change the effect of his appearance. State v. Miller, 87 Kan. 454, 124 P. 361.

Of more serious import is the challenge to the jurisdiction of the court based upon the fact that the complaint was not signed by the complaining officer, or at all. The pertinent Denver ordinance requires that an action for violation of a municipal ordinance 'shall be commenced by filing a complaint with the clerk of the Municipal Court,' and that, 'The complaint shall be signed and sworn to by the person alleging the violation.' The procedural ordinance further provides that, 'No objection to the form of any summons or complaint shall be considered by any court because of any defect unless such objection was made by the defendant prior to trial of the case on its merits, but trial of a case on its merits shall not waive any objection therefore made.' In Sronce v. City & County of Denver, 94 Colo. 578, 32 P.2d 186, which Harris relies on as supporting his position, the defect in the complaint was vital in that there was nothing to show of what offense defendant was charged and convicted, and nothing to set up as a bar to subsequent prosecution for the same offense. Here the charge is specifically set out in accordance with the ordinance and there is no contention that defendant was prejudiced in any way by omission of the signature from the complaint.

As we have repeatedly held, this is a civil proceeding instituted in a court not of record, and, in general, proceedings therein are governed by the principles of law and rules pertaining to civil procedure. City of Greeley v. Hamman, 12 Colo. 94, 20 P. 1; Lloyd v. Canon City, 46 Colo. 195, 103 P. 288; Manzanares v. People, 119 Colo. 156, 201 P.2d 532. 'The better rule is, not to apply to the pleadings [for violation of city ordinance] the strict rules applicable to criminal informations.' 9 McQuillin Mun.Corp. (3d ed.), 586, § 27.17. Rule 11 of our Rules of Civil Procedure, consonant with the Federal rule 11, 28 U.S.C.A., requires that every pleading shall be signed. While we have not had before us the question of failure to sign pleadings, it has been repeatedly held by the federal courts that failure to sign a pleading, as required by Rule 11, may warrant the striking of the pleading, but will not justify dismissal of the action. In Universal Laboratories Inc. v. Vivaudou Inc., 8 F.R.Serv. 11.51, Case 1, where attorney for plaintiff failed to sign the complaint and motion for dismissal was denied, the court said: 'There is no proof of willful failure or refusal and no prejudice could be claimed by the defendants if the plaintiff were given leave to sign the pleading heretofore served'; In Holley Coal Co. v. Globe Indemnity Co., 4 Cir., 186 F.2d 291, 295, the court said: 'But an unsigned pleading is not invalid. In re Legon, D.C., 85 F.Supp. 946; Pallant v. Sinatra, D.C., 7 F.R.D. 293. Striking the pleading is within the sound discretion of the court.' See, also, DeMontis v. Potomac Electric Co., D.C., 1 F.R.D. 119. If, then, we are to follow our repeatedly declared rule, that this is a civil action, governed by the rules of civil procedure, we must hold that the failure to sign the complaint was not jurisdictional, but is subject to correction upon being called to the attention of the court.

However, if we go farther than this, and consider the action as penal and therefore quasi-criminal in nature, still we think the defect would...