Jones v. Stevens

• Decision Date: 01 July 1867
• Parties: JONES et al. v. STEVENS.
• Court: Colorado Supreme Court

1 Colo. 67

JONES et al. v. STEVENS.

Supreme Court of Colorado

July, 1867

Where defendant withdraws his appearance without leave of court judgment for want of a plea may be entered against him.

Error to Probate Court, Jefferson County.

Mr. J B. SMITH and Mr. G. F. CROCKER, for plaintiffs in error.

Mr ALFRED SAYRE, for defendant in error.

PER CURIAM.

The defendant in error, who was the plaintiff below, brought his action to the January term, 1865.

At that term, the defendants below appeared and moved the court to continue the case upon affidavit filed, which continuance was granted at the costs of the applicants. At the February term following, the plaintiffs in error filed a motion to dismiss the cause, which was overruled by the court. The case was then continued at the instance of the court. At the April term following, the attorneys of Jones came and withdrew their appearance, whereupon the attorney of Stevens took judgment for want of a plea, and the court proceeded to assess the damages without having summoned a jury for that purpose.

It is claimed by the plaintiffs in error, that the original writ having been signed by A. O. Patterson, as deputy to the county clerk, Carpenter, is void because no deputy was authorized to act in this behalf as clerk of the probate court. We do not think it necessary to inquire into this question, because whether the process was void or voidable only, inasmuch as the plaintiffs appeared in the cause and moved a continuance of the case, they must be held to have waived any irregularity in the process. The purpose of process, like that of a summons, is to bring the parties into court and advise them in brief of the nature of the proceedings against them. It is essential that objection be made to the process at the earliest time when they shall appear in court in response to the summons. If they can take any other steps in the cause, and claim afterward to object to the validity of the process, they can do so through all the stages of the cause up to the time of the verdict, until the error or irregularity will be cured by the verdict. Here they moved a continuance upon affidavit and it was allowed.

In the interval between the terms of the court, an alias summons might have been obtained, and the parties brought into court by process not liable to the objection insisted upon. The case in 6 Blackf. 557, appears to have been decided upon the ground that a voluntary appearance can be withdrawn at any time, a doctrine condemned by a majority of the court in Dana et al. v. Adams, 13 Ill. 693. In this case the appearance was withdrawn, and we are urged to presume that the withdrawal was with the leave of the court. But we incline to think that there was no leave of the court given in the premises, but that the court recorded the withdrawal as a faithful record of the proceedings, without either assenting or denying the right of withdrawal. The defendants below took all the responsibilities of their own act, and not having asked the leave of the court to withdraw their appearance, it must be presumed they did it at their own responsibility as to the consequences.

In the case of Easton et al. v. Altum, 1 Scam. 250, and authorities there cited, it is held, that whether the writ be void or not, the defendant took such steps that he was regularly in court whether there was process or not.

The next point claimed as error is, that the court proceeded after judgment, in default of a plea, to assess the plaintiff's damages...