Miller v. Owens

• Decision Date: 02 June 1913
• Parties: MILLER v. OWENS.
• Court: Colorado Supreme Court

133 P. 141

55 Colo. 88

MILLER v. OWENS.

Supreme Court of Colorado

June 2, 1913

Error to District Court, Rio Blanco County; John T. Shumate, Judge.

Action by W. H. Miller against Mary E. Owens, administratrix of Hugh R. Owens, deceased. Judgment for defendant, and plaintiff brings error. Affirmed.

Plaintiff in error commenced an action in equity to annul and set aside what was alleged to be a voidable judgment rendered against him and in favor of Hugh R. Owens, since deceased. His right to this relief was based upon the ground that the district court of Rio Blanco county, in which the judgment was rendered, was without jurisdiction to render it. The allegations of the complaint relied upon to establish this want of jurisdiction are to the effect that Owens, in his lifetime, commenced an action against plaintiff in the district court upon which the judgment complained of was rendered, and that this cause was tried against the protest of plaintiff in error at a time when the term which it was claimed was then being held had ceased and determined, and when, in fact and in law, the court was not in session, and had been adjourned for the term, but which the judge thereafter attempted to reconvene; and (quoting from the complaint): 'That before proceeding with said trial of said cause, as aforesaid, this plaintiff, by his attorneys then and there entered his protest of record against the trial thereof, and because and on the ground and for the reason that the said term of said district court so adjourned as aforesaid, and so attempted or pretended to be reconvened was without right, authority, or jurisdiction in law, and without notice of any kind or character to this plaintiff and contrary to and regardless of his right, and against his interests in the premises.' It is further charged in the complaint that the records of the court showing that the court was regularly and legally convened at the time of the trial of the case was not true, or correct. The complaint then alleges that plaintiff prayed and was granted an appeal to the Supreme Court from the judgment rendered against him that he gave the required bond, but abandoned his appeal in favor of this action, as being more speedy and direct. For answer, so far as material to consider, the defendant alleged facts from which it appears the court was regularly in session when the case against the plaintiff was tried, and avers that his appeal to the Supreme Court was dismissed because of failure to prosecute it as by law provided. For reply the plaintiff set up the proceedings in the Supreme Court on his appeal, from which it appears that it was dismissed without prejudice for failure to prosecute. On these...