Millage v. Richards

• Decision Date: 01 April 1912
• Citation: 52 Colo. 512,122 P. 788
• Parties: MILLAGE v. RICHARDS et al.
• Court: Colorado Supreme Court

122 P. 788

52 Colo. 512

MILLAGE v. RICHARDS et al.

Supreme Court of Colorado

April 1, 1912

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

Action by Jacob H. Millage against Sanford Richards and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Bennett & Walrod, of Holyoke, and Allen & Webster of Denver, for appellant.

Robert Given, of Denver, for appellee Sanford Richards.

WHITE J.

In November, 1903, appellant, as plaintiff, brought a suit to quiet title to a certain tract of land, under the provisions of the statute. The appellees were named as defendants therein. A summons was issued, placed in the hands of the sheriff for service, and the return showed that, 'after diligent search, the within-named defendant cannot be found in my county.' Thereupon summons by publication was had. The affidavit upon which the order for publication of the summons was based failed to comply with the statutory provision as to the post office address of the defendants, or that the same was unknown. The affidavit as to the publication of the summons was defective in certain particulars, not necessary to name.

April 13, 1904, a default was entered against the defendants, and a decree rendered in accordance with the prayer of the complaint. Nothing further appears until March 9, 1908, when the plaintiff, by motion supported by affidavits, sought to have the affidavit upon which the order for publication of summons was based amended to conform to the statutory requirements. A motion was also made to amend the affidavit of proof of publication of the summons, and likewise to amend the sheriff's return of service of summons. Thereafter the cause was continued for the term. May 11 1909, Sanford Richards, one of the defendants named, appeared specially and moved the court to set aside the judgment, and to allow him to answer, for the reason that he was a defendant in the suit, and was the owner of the land described in the complaint; that no summons was ever served upon him, and the court acquired no jurisdiction over his person; and that, by reason of the non-service of summons the apparent judgment was a nullity. The motions of plaintiff were denied, and that of defendant sustained. November 17 1909, after answer filed, 'the cause came on regularly for trial,' the plaintiff and defendant Richards appearing by their respective attorneys, and the latter also in person. The plaintiff refused to offer any proof, and upon motion of defendant Richards the cause was dismissed. From the judgment so rendered, plaintiff prosecutes this appeal.

The refusal of the court to permit the affidavit, upon which the order for publication of the summons was based, to be amended at the time and as requested was proper, and in no wise constituted error. What the affiant knew or did not know, and might have stated in the affidavit, but did not, is wholly immaterial. The important thing is what was or was not stated therein. An affidavit by a person authorized by law to make the same, and containing the statements required by statute, was an essential prerequisite to give the court jurisdiction to proceed. Trowbridge v. Allen, 48 Colo. 419, 110 P. 193; Empire Ranch & Cattle Co. v. Coldren, 117 P. 1005.

It is contended, however, that, as the affidavit contained the statement that the place of residence of the defendants was unknown, it was, in legal effect, a statement that the post office address of the defendants was 'not known to affiant.' We do not think so. 'A material distinction may exist between one's post office address and his residence address; the former is where he receives his mail; the latter where he resides.' People v. Newell, 49 Colo. 349, 353, 113 P.

643 645. Moreover, by an...