Morrison v. District Court In and For City and County of Denver

Decision Date02 August 1960
Docket NumberNo. 19455,19455
Citation143 Colo. 514,355 P.2d 660
PartiesFrank B. MORRISON, Complainant, v. DISTRICT COURT IN AND FOR THE CITY AND COUNTY OF DENVER and Joseph E. Cook, one of the Judges thereof, Defendants.
CourtColorado Supreme Court

Paul Snyder, Castle Rock, for complainant.

Myron H. Burnett, Denver, for defendants.

KNAUSS, Justice.

This is an original proceeding, wherein Frank B. Morrison, herein referred to as complainant, among other things seeks to prohibit the trial court 'from requiring Complainant to plead further in a certain cause pending in the Denver District Court wherein Complainant and David Jon Morrison are defendants and Irene Leib and Carl Leib are plaintiffs.'

The District Court case is predicated on an automobile accident which occurred in Colorado in October 1959, in which the Leibs claim to have suffered injuries as a result of the negligence of David Jon Morrison in driving an automobile registered and licensed in Nebraska in the name of complainant.

The complaint alleged that said automobile was a 'family car' purchased by complainant for 'the use of a member or members of his family', and that it was so being operated at the time of the accident by David Jon Morrison, son of complainant. It is admitted that Frank B. Morrison and his son are nonresidents of Colorado. Service of summons was made under C.R.S. '53, 13-8-1 et seq. Following receipt of the summons complainant filed a motion to quash the service upon him alleging that he is a nonresident of Colorado; was not in the state of Colorado on the date of the accident; that the Secretary of State of Colorado 'is not a lawful agent for service of summons on the deft.'; that the automobile was not a family car. In support of the motion to quash complainant filed his affidavit in which was set forth that he is a nonresident of Colorado and was not present in this state on the date of the accident and that David Jon Morrison 'at no time mentioned in plaintiff's petition [complaint] was the agent, servant or employee of the defendant, Frank B. Morrison; that the automobile mentioned in plaintiff's petition [complaint] was not a family automobile, and that any interest of the defendant, Frank B. Morrison therein was purely of a security nature.'

The trial court overruled the motion to quash the service on complainant, who thereupon brought this original proceeding.

It is quite apparent that complainant's affidavit made no showing that he was not the owner of the automobile driven by David Jon Morrison, nor did it deny that David Jon Morrison was a member of complainant's family, or that the latter was not using the car for the uses and purposes for which it was allegedly purchased, to-wit as a family automobile. Neither did he deny that he was the head of a family of which David Jon Morrison was a member.

As the basis of its ruling in this case the trial court had before it the original complaint, the summons and return of service thereof and the Notice of Service given by counsel for plaintiffs in the original action, together with the affidavit of said counsel pursuant to C.R.S. '53, 13-8-1 et seq. The affidavit filed by complainant avers conclusions of law, viz.: that David Jon Morrison was not acting as agent for Frank B. Morrison and that the automobile was not a family car.

In Carlson v. District Court, 116 Colo. 330, 180 P.2d 525, 531, this court said:

'In the instant case, according to the record, there was neither conflicting evidence nor disputed facts. As we have shown, affiant, in the so-called affidavit which was filed in the district court on December 13, 1946, states: 'That the defendant (Carlson) is a nonresident, as will more fully appear from Paragraph 1 of the complaint.' By reference to said paragraph 1 we find that plaintiff was driving an automobile bearing an Illinois license. * * * according to the ordinary and usual meaning of the language used by defendant, we cannot escape the conclusion that the allegations of the complaint and the statements in the so-called affidavit are wholly insufficient to establish that on December 4, 1944, plaintiff here was a nonresident. Counter to the showing in the record made by Fodor in the district court, we have the definite, positive and unequivocal sworn statements of Wormwood and Carlson, as well as the letterhead of the church, to establish that on December 4, 1944, * * * Carlson was the resident pastor of a church in Leadville, Colorado.'

Here, unlike the Carlson case, we do not have 'the definite, positive and unequivocal sworn statement' of Frank B. Morrison to establish the facts. His affidavit is plainly an attempt to equivocate. The rule laid down in the Carlson case is the general rule. See Findlay v....

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5 cases
  • Clemens v. District Court of City and County of Denver, 20618
    • United States
    • Supreme Court of Colorado
    • February 17, 1964
    ...... The constitutionality of that legislation has not been questioned before this court, though the validity of procedures prescribed for service of process was considered and passed upon by this court in Morrison v. District Court, 143 Colo. 514, 355 P.2d 660; Warwick v. District Court, 129 Colo. 300, 269 P.2d 704; Nelson v. District Court, 136 Colo. 467, 320 P.2d 959. Much that has been said in the foregoing cases is applicable to the situation here. .         We now turn our attention to the ......
  • Maurillo v. Park Slope U-Haul
    • United States
    • New York Supreme Court Appellate Division
    • December 27, 1993
    ...v. Smith, 47 Tenn.App. 505, 339 S.W.2d 135; Cameron v. Downs, 32 Wash.App. 875, 650 P.2d 260; Morrison v. District Court in and for City & County of Denver, 143 Colo. 514, 355 P.2d 660; Piechota v. Rapp, 148 Neb. 442, 27 N.W.2d 682; see also, Slutter v. Homer, 244 Md. 131, 223 A.2d In the c......
  • Peterson v. U-Haul Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 25, 1969
    ...233 N.C. 564, 65 S.E.2d 17 (N.C.1951); Norwood v. Parthemos, 230 S.C. 207, 95 S.E.2d 168 (S.C.1956); and Morrison v. District Court, 143 Colo. 514, 355 P.2d 660 (Colo.1960), utilize the family purpose doctrine to attach liability on nonresident automobile owners served under nonresident mot......
  • Lee v. Degler, 22380
    • United States
    • Supreme Court of Colorado
    • June 2, 1969
    ...Consumers Oil Cooperative, 144 Colo. 518, 357 P.2d 63, the father was held liable for his son's negligence. See also Morrison v. District Court, 143 Colo. 514, 355 P.2d 660; Vick v. Zumwalt, 130 Colo. 148, 273 P.2d 1010. In each case the defendant was the head of the At least once a plainti......
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