McDermett v. Rosenbaum

• Decision Date: 09 October 1899
• Citation: 58 P. 880,13 Colo.App. 444
• Parties: McDERMETT v. ROSENBAUM. [1]
• Court: Colorado Court of Appeals

58 P. 880

13 Colo.App. 444

McDERMETT v. ROSENBAUM. ^[1]

Court of Appeals of Colorado

October 9, 1899

Error to district court, Boulder county.

Action by Mary A. McDermett against Michael L. Rosenbaum. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Simon T. Horn, for plaintiff in error.

Giffin & Rowland, for defendant in error.

BISSELL P.J.

This suit, sounding in damages, was begun on the 14th of August 1897, by the service of the summons and complaint on the defendant. Thereafter, and within the statutory period for the filing of the answer, the defendant filed a motion and affidavit, asking that the plaintiff be compelled to file a cost bond, alleging her inability to pay costs, and the danger to the officers as to their fees. Thereafter, and on the 18th of September, while this motion was pending, and before its determination, or the tender of an issue, the plaintiff filed a motion praying a default and judgment against the defendant. October 5th thereafter these two motions for a cost bond and for a default judgment came on for hearing. The motion for costs, in the natural order of events, seems to have been first heard, and was sustained by the court, who ordered the plaintiff to file a bond within 10 days in the sum of $200, to provide for the costs in the suit. The plaintiff made no objection to the amount of the bond, nor did she make any showing as a basis for its reduction, nor any application to sue in forma pauperis, or otherwise than by objection and exception complain of the court's action. At the same time the court, both counsel being present, made an order fixing the time within which the defendant should file an answer, which was, under our decisions, instanter, being an order that he answer within 24 hours. The answer was filed under the order, and subsequently, the plaintiff failing to comply with the court's order respecting the cost bond, the suit was dismissed. To these several matters the plaintiff in error objects, and brings the case here for review.

There are but two substantial questions presented in the briefs and only two which were argued at the oral submission of the cause. The first relates to the force and effect of section 168 of the Code, which, in general, provides that in an action like the present, if no answer, demurrer, or motion has been filed within the time specified in the summons, or such further time as may have been granted, the clerk or judge shall enter the default of the defendant. It is the contention of counsel for the plaintiff in error that she had an absolute right to have the default of the defendant entered because of a failure to answer, notwithstanding this motion for a cost bond had, within the proper time, been filed. With this position we are wholly unable to concur. The only practical question is whether the filing of a motion for a cost bond preserved the defendant's rights to answer and prevented the plaintiff from taking a default against him. We see no escape from this conclusion. The language of the Code is exceedingly broad, and permits the defendant to save his rights, and prevent a default from being entered against him, if he file an answer, demurrer, or a motion. We are unable to follow counsel to his conclusion that the motion for which this act provides must be a motion which in some manner attacks the plaintiff's cause of action, or her complaint, or the proceedings by which her suit is instituted. It is his theory that the only construction of the Code provision is that it must be a motion of such character in order to stay the plaintiff's hands, and prevent her from taking her default. In support of his position he cites decisions from other states, but the statutes of those states, as we read them, are wholly different from our own, and the decisions quoted are therefore, entirely inapplicable. The language of our Code is simply "a motion." Without judicial legislation, we do not see how we can legitimately hold that a motion for a cost bond is not exactly and entirely within the purview of that statute, and, when filed, will save the defendant's rights, and prevent a default. In one sense it is a motion which attacks the plaintiff's right to proceed. The statutory provision which is found in Sess.Laws 1885, p. 156 (1 Mills' Ann.St. § 675), gives a defendant the right, when the plaintiff is a nonresident, or when the defendant makes a showing that the plaintiff is unable to pay costs, and the fees of the officers are endangered, to file a motion for security, which the court has full power to grant, and, when granted, it...