Lougee v. Beeney

• Decision Date: 08 July 1912
• Citation: 22 Colo.App. 603,126 P. 1102
• Court: Colorado Court of Appeals
• Parties: LOUGEE v. BEENEY.

126 P. 1102

22 Colo.App. 603

LOUGEE v. BEENEY.

Court of Appeals of Colorado

July 8, 1912

Rehearing Denied Oct. 14, 1912

Appeal from District Court, Washington County; H.P. Burke, Judge.

Action by Perry R. Beeney against F.C. Lougee. From a judgment for plaintiff, defendant appeals. Affirmed.

R.H Gilmore, of Denver, for appellant.

John F Mail, of Denver, for appellee.

CUNNINGHAM J.

Appellee who will be hereafter referred to as plaintiff, brought his action in ejectment in the district court to recover possession of the N.W. 1/4, section 12, town 2 N range 50 W., Washington county. The answer was a general denial, followed by a supplemental answer setting up payment of taxes for 7 years; the last payment of taxes being made by the defendant on the 1st day of January, 1908. The complaint was filed on August 7, 1907. The original answer, as we have seen, was a general denial only, and was filed December 24, 1907. The supplemental answer referred to was filed July 1, 1908. Thus it will be seen the seventh payment of taxes pleaded in the supplemental answer was made almost 11 months after the institution of the suit, and a few days after the filing of the answer. Institution of suit stopped the running of the statute of limitations, and the seventh payment of taxes, made under the circumstances related, cannot avail defendant. Indeed, no contention is made by him in the brief that the statute of limitations, as pleaded in the supplemental answer, is relied on.

The defendant appears to rely wholly for his title upon a certain decree of the county court of Washington County, purporting to quiet title to the premises in controversy in one Margaret D. Dickson, defendant's grantor. This quiet title proceeding in the county court, resulting in the aforesaid decree, was brought by Margaret D. Dickson as plaintiff. The affidavit for publication of summons in the case in the county court was made by Dickson's attorney. This affidavit is fatally defective in two respects: (a) It was not made by the plaintiff, but by her attorney, without any reason being given why the plaintiff herself did not make the affidavit; (b) the affidavit does not set forth the post office address of the defendant. Counsel for defendant does not contend in his brief that the affidavit is sufficient, but insists that the decree, being fair on its face, could not be attacked collaterally. The contrary has been expressly ruled...