Keely v. East Side Imp. Co.

• Decision Date: 10 June 1901
• Citation: 16 Colo.App. 365,65 P. 456
• Parties: KEELY et al. v. EAST SIDE IMP. CO. et al.
• Court: Colorado Court of Appeals

65 P. 456

16 Colo.App. 365

KEELY et al. v. EAST SIDE IMP. CO. et al.

Court of Appeals of Colorado

June 10, 1901

Appeal from district court, Arapahoe county.

Action by the East Side Improvement Company and others against Thomas Keely, trustee, and others, to set aside the return of service of summons and subsequent proceedings in a former suit. From a judgment for plaintiffs, defendants appeal. Affirmed.

Chas. J. Hughes, Jr., and Branch H. Giles, for appellant Thomas Keely.

John P Heisler, for appellant Emma E. Ward.

W.E. So Relle (Geo. T. Sumner, of counsel) for appellees.

GUNTER J.

The facts material to this ruling are: February 8, 1893, the East Side Improvement Company, while owner in fee and in possession of certain lots in Malone and Du Bois subdivision Arapahoe county, Colo., made an agreement with David R McCurdy to convey to him these lots. McCurdy thereupon assigned this agreement to Clementina McCurdy, who, April 8, 1893, contracted to borrow $5,000 from one Miller for the purpose of constructing a house upon the lots. This contract, in the nature of a mortgage, Miller assigned, July 1, 1893, to appellee Du Bois. The house, valued at $5,000, was built. March 23, 1894, Clementina McCurdy, by quitclaim deed, conveyed all her interest in the premises to Du Bois. May 23, 1894, Vote & Co. filed a mechanic's lien upon the premises, claiming $115 for material and labor. August 22, 1894, suit was instituted in the district court of said county to enforce the lien, wherein Vote & Co. were plaintiffs, and C.T. Livermore, A.J. Mayne, Schmitt & Gorgas, Bradford H. Du Bois, and the East Side Improvement Company were defendants. C.T. Livermore and A.J. Mayne were alleged to be the principal contractors, at whose instance the work was done and materials furnished for which lien was claimed. Schmitt & Gorgas were made defendants from some supposed interest in the premises sought to be reached by the lien. October 8, 1894, a decree was entered embodying a personal judgment against C.T. Livermore and A.J. Mayne for $154.55, together with costs, and declaring a lien for such amount against the premises, and ordering a sale thereof. Sale was made November 13, 1894, to G.E. Vote, member or the firm Vote & Co., for $177.60; certificate of sale issued, followed by sheriff's deed to Vote August 15, 1895. July 28, 1896, Vote, by warranty deed, conveyed the premises to appellant Emma E. Ward. On same date Emma E. Ward made her trust deed to appellant Keely to secure a previously existing indebtedness. The sheriff's certificate and the deeds were duly recorded. May 18, 1897, appellees the East Side Improvement Company and Du Bois began suit in the district court of said county to set aside the return of service on the summons in the lien suit, the decree, the certificate of sale, and deed issued therein; also the warranty deed from Vote to appellant Ward, and the trust deed to appellant Keely,--alleging as ground therefor that the court at no time had jurisdiction of the person of any one of the defendants in the lien suit. There was no effort to acquire jurisdiction in the lien suit other than by personal service. Defendants below in the present suit were Vote & Co., Burchinell, as sheriff, G.E. Vote, and appellants Ward and Keely. October 25, 1898, applications of Mayne, Livermore, and Schmitt & Gorgas to be made parties plaintiff herein were granted. October 25, 1898, the cause was tried to the court, which found the issues for the plaintiffs, finding specially that the return upon the summons in the lien suit was not made by an officer; that no one of the defendants therein was ever served with summons, or ever appeared in any manner therein; that neither Du Bois nor the East Side Improvement Company knew of the decree in the lien suit until long after the deed from Vote to Mrs. Ward and the Keely trust deed; that neither of the other defendants therein knew of such decree until about October 11, 1898. There was no change in the ownership or in the condition of the property during the 10 months intervening between the date of the sale to Emma E. Ward and the institution of this suit. The court below, for the reason that the court in the lien suit was without jurisdiction of any one of the defendants therein, gave judgment canceling the return on the summons, setting aside the decree, the certificate of sale, and deed in the lien suit; also the warranty deed from Vote to Emma E. Ward and the Keely trust deed. Appellants Keely and Ward are the only parties complaining by this appeal of the decree below. Was substantial error committed as to them? They say there was, and contend:

1. That the complaint herein is fatally defective, in not alleging that a defense existed to the lien suit; that the evidence herein was insufficient, in that it failed to establish such defense. The facts in this case are not within the rule sought to be invoked. A decree was entered subjecting the property of appellees Du Bois and the East Side Improvement Company without jurisdiction of them, and without notice to them their property was sold and deeded away. In a proceeding to set aside a judgment, and deeds thereunder, with facts, as to the point before us, substantially the same as in this case, the court said: "Before a man's property is sold and deeded away, he should have an opportunity to pay the debt, or redeem the property from sale. This right to redeem is a valuable right, secured by positive statutory enactment; which right, in ...