Harvel v. District Court In and For Jefferson County

• Decision Date: 03 September 1968
• Docket Number: No. 23579,23579
• Citation: 444 P.2d 629,166 Colo. 520
• Parties: Zelda L. HARVEL, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF JEFFERSON, in the First Judicial District, State of Colorado, and the Honorable Ronald J. Hardesty, one of the Judges Thereof, and Myrna Joanne Boe, Joyce Lehman, Joan Bankston and Anne Christophersen, Respondents.
• Court: Colorado Supreme Court

Page 629

444 P.2d 629

166 Colo. 520

Zelda L. HARVEL, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF JEFFERSON, in the First Judicial District, State of Colorado, and the Honorable Ronald J. Hardesty, one of the Judges Thereof, and Myrna Joanne Boe, Joyce Lehman, Joan Bankston and Anne Christophersen, Respondents.

No. 23579.

Supreme Court of Colorado, En Banc.

Sept. 3, 1968.

Burnett, Watson & Horan, Denver, for petitioner.

Johnson & Kidneigh, Roger F. Johnson, Denver, for respondents.

MOORE, Chief Justice.

This is an original proceeding in which this court issued a rule directed to the above named respondents, requiring them to show cause why the purported service of summons, allegedly made upon Zelda L. Harvel in an action for personal injuries, should not be quashed. Harvel was named as defendant in an action brought by respondents Boe, Lehman, Bankston and Christophersen in the District Court of Jefferson County. The return of service of summons stated that service was made by leaving a copy of the summons and complaint '* * * with Jeanette Melcher a member of the family of the defendant over the age of eighteen years for the defendant Zelda Harvel at the usual place of abode of the defendant 7355 W. 3rd Place in Jefferson County and State of Colorado on March 13, 1968 at approximately 8:50 P.M.'

A motion to quash the service of summons was filed on behalf of Harvel in which it was alleged that she was not at the address where the purported service was made, and that it was not her 'usual place of abode.' The motion was supported by the affidavit of Mary Jeanette Melcher in which it was asserted that the summons and complaint had been left with the affiant on March 13, 1968; that Zelda Harvel did not abide at 7355 W. 3rd Place on the date of the purported service, and had not lived at that address since March 1, 1968; and that affiant was not informed as to the whereabouts of Zelda Harvel, and was not advised that she would return to that address at any time in the future. The trial court denied the motion and Harvel thereupon petitioned this court for issuance of a rule to show cause. The rule issued, and the answer of respondents contains a full transcript of the evidence received by the trial court at the hearing on the motion to quash the service of summons.

In brief summary it was established by this evidence that Mary Jeanette Melcher resided at the address where the service was made; that Zelda Harvel was a 'distant relative' of affiant; that Harvel had resided at the address where service was made from January 1, 1967, until March 1, 1968, at which time she was placed in a hospital for the treatment of injuries received in the accident which gave rise to the district court action. It was further shown that Harvel's clothing was still on the premises, and that the telephone listing indicates that both Mary Jeanette Melcher and Zelda Harvel reside at the address where service was made; that the utilities supplied to...