Kellner v. District Court In and For City and County of Denver, 17007

• Citation: 256 P.2d 887,127 Colo. 320
• Decision Date: 16 February 1953
• Docket Number: No. 17007,17007
• Parties: . Supreme Court of Colorado, en Banc
• Court: Supreme Court of Colorado

Page 887

256 P.2d 887

127 Colo. 320

KELLNER et al. v. DISTRICT COURT IN AND FOR CITY AND COUNTY OF DENVER et al.

No. 17007.

Supreme Court of Colorado, en Banc.

Feb. 16, 1953.

Shuteran, Robinson & Harrington, Denver, for petitioners.

Holme, Roberts, More, Owen & Keegan, Denver, for respondents.

HOLLAND, Justice.

On a complaint--lacking in some particulars--in which plaintiffs seek relief in the nature of prohibition, directed toward respondent district court and the judge thereof, and alleging that the inferior tribunal was about to proceed without, or in excess of, its jurisdiction, our rule to show cause was issued January 9, 1953. Answer and response thereto and a reply having been filed, the issue is thus made.

The contention centered around the validity of process served upon defendants in an action in fraud and rescission of contract or for damages. Defendants, formerly of Denver, and now residing in Ventura, California, were served with summons in California under Rule 4(f)(1), R.C.P. Colo., which is as follows: 'Personal Service Outside the State. Personal service outside the state may be made: In any action, upon a natural person over the age of 18 years who is a resident of this state by delivering a copy of the process, together with a copy of the pleading upon which it was issued, to the person served.' By special appearance defendants filed a motion, supported by affidavits, to quash this service generally on the ground that they are no longer residents of Colorado, but are in fact residents of the State of California. After argument, this motion was denied and defendants ordered to answer within the designated period. This original proceeding in the nature of prohibition was immediately commenced.

It is contended by attorneys for respondents that this court is without jurisdiction to entertain this proceeding because our jurisdiction is limited by our Constitution and rules of civil procedure. It is contended that our original jurisdiction attaches only in certain specific matters enumerated and in cases involving matters of great public importance; further contention is made that the complaint herein does not allege that the matter is of great public importance; respondents insist that this is a matter of litigation between private parties, in which the public is in no way involved; that our jurisdiction in such cases is appellate only; and that this court should not take original jurisdiction when there is a plain, adequate and speedy remedy at law.

As to the question of what is of 'great public importance,' sole determination in all cases, according to the peculiar features of each, is within the province of this court. In some cases there may be an adequate remedy at law, but not speedy. In some instances, and we believe applicable here, it is apparent on the face of the pleadings and record before us, that we could not affirm any judgment returned against defendants herein due to the invalidity of the service of process and the lack of jurisdiction over the persons that would follow, therefore this court is committed to the proposition that an order in the nature of a writ of prohibition, in such cases, should be entertained. We are well aware of the provisions of Rules 106 and 116 of our Rules of Civil Procedure, and the uncertainty and inconsistencies existing, especially in the interpretation thereof. Rule 116 provides inter alia, that, when a court 'is otherwise proceeding without or in excess of jurisdiction' that fact will not be regarded as sufficient to invoke the original jurisdiction of this court; it further provides that this court in such matters is governed by these rules, subject, however, to our power to prescribe different procedure.

Rule 106(4) provides that in cases where the inferior tribunal has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy at law, then this court may direct citation to such tribunal to show cause why it should not be prohibited from proceeding further, and our review is extended to further than to determine whether or not jurisdiction has been exceeded or discretion abused. By these rules, in one breath our jurisdiction in original matters is curtailed, and in the next breath, according to our discretion and determination, the limitations are removed.

Since it will be apparent from the discussion of the facts in this case that the trial court has no jurisdiction over the person of defendants, we adhere to, and further emphasize, the statements in Carlson v. District Court, 116 Colo. 330, 180 P.2d 525, 532, '* * * no question of greater 'public importance' can arise than one in which a court is proceeding without jurisdiction of the person or subject matter.' In the interest of justice, we consider it as much our duty, when our superintending control of inferior tribunals is invoked, to keep such tribunals within their jurisdiction, as it is to correct errors of such tribunals exercising proper jurisdiction.

The entire question here is to be resolved upon the question of 'residence' as used in our statutes and rules of procedure. Our rule relating to personal service outside the state, supra, is confined to the question of who is, or who is not, a resident of the State of Colorado. It is argued here that this matter was determined by the lower court upon a controverted set of facts, which precludes this court from interference. We do not accept or agree with this contention, because, as we are able to read the entire record herein, there is no controversy as to the facts, the facts being established solely by the affidavits and depositions of defendants.

Summarized, we have the following factual situation: Plaintiffs in error, who have been referred to as defendants, constructed a dwelling at 3401 South Birch street, Denver, and lived therein for some considerable length of time before selling the premises to plaintiffs on April 3, 1951. Plaintiffs lived in the premises for a little over one year before making any demand for rescission of the sale on April 24, 1952. In the early part of May, 1952, this action was instituted by the filing of the complaint and issuance of summons. Plaintiffs in the complaint, lengthy and detailed, set out many defects in the dwelling of which it is alleged that defendants well knew, but fraudulently conspired to conceal from plaintiffs and offered the premises for sale greatly in excess of its actual value, and due to the fraud and deception, plaintiffs ask rescission of the sale and the return of $39,000, the purchase price, or damages therefor. There is no occasion to detail the allegations concerning the defects and the fraud and misrepresentations or concealment, because the truth or falsity of the allegations has not been tested and is not involved at this stage of the proceeding. The...