Nelson v. Chittenden

• Decision Date: 06 May 1912
• Citation: 53 Colo. 30,123 P. 656
• Parties: NELSON et al. v. CHITTENDEN et al.
• Court: Colorado Supreme Court

123 P. 656

53 Colo. 30

NELSON et al. v. CHITTENDEN et al.

Supreme Court of Colorado, En Banc

May 6, 1912

Error to Washington County Court; Ira M. Barnhouse, Judge.

Action by Peter Nelson and another against George F. Chittenden and another. From a judgment for defendants, plaintiffs bring error. Reversed and remanded, with directions.

Philo B. Tolles and Thomas D. Cobbey, both of Denver, for plaintiffs in error.

John F Mail, of Denver, for defendants in error.

HILL J.

This action was brought by plaintiffs in error to set aside a decree of the county court of Washington county against them and in favor of the defendants, quieting the title to certain lands.

The complaint, among other things, alleges that the plaintiffs now are, and for more than 20 years have been, residents of Denver, well known, etc.; that they are the owners of the land; that the time allowed within which to secure relief in the former action had expired prior to the time the plaintiffs had notice of its existence; that they have no adequate remedy at law; that the former proceedings and judgment are null and void and of no effect for the following reasons: 'First. No summons was ever served upon the plaintiffs, or either of them. Second. The pretended or alleged service of summons, if made, was made by a person incompetent to serve the same, namely, by Egbert More, one of the attorneys for the plaintiffs in said action. Third. At the time of the alleged and pretended service of summons there was no summons in existence,' etc.

The defendants demurred on two grounds: First. That said petition does not state facts sufficient to constitute a cause of action. Second. That said complaint shows on its face that there is another action pending. The second ground for demurrer appears to be waived.

The allegation that 'no summons was ever served upon the plaintiffs, or either of them,' coupled with the other statements in the complaint, states a cause of action sufficient to defeat a general demurrer. Counsel for defendants does not question this, but contends that the judgment should be affirmed for another reason, viz., because there is no averment in the complaint that the value of the property in controversy, or the amount involved for which relief is sought, does not exceed $2,000. He contends that under general section 1527, Revised Statutes 1908, such an allegation, or its equivalent, is a jurisdictional averment and without which the complaint does not state facts sufficient to give the county court jurisdiction. We have no contention with this position; but it was not embodied in this demurrer; it was limited to the causes stated in the third and sixth grounds provided by the Code. Had the judgment been for the plaintiffs on this complaint, it would have to be reversed for this reason. Home et al. v. Duff et al., 5 Colo. 574; Learned v. Tritch et al., 6 Colo. 432.

The question of the jurisdictional averment is raised here for the first time. The plaintiffs' right to amend their complaint is granted by the Code, which is to be liberally construed for the purposes of promoting the ends of justice. In such cases as this, where the jurisdictional averment is absent when the question is raised, the court will allow the defect to be cured by amendment. Southwestern Land Company v. Hickory Jackson Ditch Company, 18 Colo. 489, 33 P. 275. Had this question been raised in the trial court and application to amend been denied, with no further showing than disclosed by this record, we would have been compelled to hold that such refusal was an abuse of discretion. Yet to affirm this judgment for this reason is to prevent the plaintiffs from having the opportunity of curing this defect by amendment when it is first raised.

Whether the former judgment or the land is the subject-matter of the action is a question unnecessary to determine; in either event, there is nothing in the record to show that the jurisdictional allegation cannot truthfully be made, or that the court would not have had jurisdiction, had it been embodied in the complaint.

In Schilling et al. v. Rominger, 4 Colo. 100, 106, it is said: 'This court will not reverse a decree upon a point which the court below was given no opportunity to pass upon, and where the objection, had it been made in the court below, might have been obviated, as is apparent from the record might have been done in this case.' This principle is applicable, when applied to the affirmance of this judgment. This objection, had it been made, might have been obviated.

In Toothaker v. City of Boulder, 13 Colo. 219, 223, 22 P. 468, 470, applying this principle, where the complaint failed to state a cause of action, this court said: '* * * Conceding that the complaint does not state facts sufficient to constitute a cause of action, and that objection for such causes may be raised at any time, it is clearly a misnomer in cases of this kind to classify such an objection as one against the jurisdiction of the court. If defendant's counsel are of opinion in any case that the complaint does not state facts sufficient to constitute a cause of action, they may demur, or raise the question in any appropriate way at any time, and the court may correctly sustain the objection; still it does not necessarily follow that the court is thereby ousted of its jurisdiction, for the complaint may be amended so as to be sufficient; or, even if that cannot be done, still the court may have jurisdiction of the subject-matter, as well as of the parties, and in such case may render a valid judgment, dismissing the action.'

We think this principle applicable here. If the question had been raised that the complaint fails to disclose that the county court had jurisdiction of the subject-matter that fact, when decided, did not, of itself, oust the court of jurisdiction, for the reason that the complaint was subject to amendment; the plaintiffs had the right to amend and allege, if they could, that the court did have jurisdiction over the subject-matter.

In Mulock v. Wilson, 19 Colo. 296, at page 300, 35 P. 532, at page 534, it is said: 'An objection made for the first time in an appellate court is viewed with judicial disfavor, even though the objection be one which the Code permits to be raised at any time.'

In Miller v. Thorpe, 4 Colo.App. 559, 561, 36 P. 891, 892, it is said: 'The power which the Code gives to the court to permit amendments should be broadly and generously exercised to further the interests and protect the rights of litigants.'

In Harris v. Harris, 9 Colo.App. 211, 47 P. 841, the court held that, under the provisions of the Code, the power to amend the pleadings, in the discretion of the court, continues until after the evidence is concluded; the limitation being that the amendment shall not bring a new cause of action.

In Crosby v. Woodbury, 37 Colo. 1, at page 13, 89 P. 34, at page 37, it is said: 'A judgment may be affirmed upon a ground other than that which influenced the trial court, and should not be reversed, merely because it is based upon a wrong reason. If, however, it appears that a wrong reason adopted by the trial court prevented the defeated party from properly presenting his case, or prejudiced his rights, then the error of the court should be corrected on review. Appellate courts should be careful to prevent injustice resulting from the affirmance of a judgment upon a question not presented to the trial court, or which it ignored, and which might have been avoided, had attention been directed to it. A question raised for the first time on appeal is not favored. Hence an appellate court should not ordinarily affirm a judgment which is erroneous, as tested by the reasons assigned for its rendition by the trial court, upon a ground involving a question of pleading or fact not fully developed at the trial, and to which attention of neither court nor counsel was called, when the affirmance might result in a miscarriage of justice.'

This announcement of well-recognized principles is specially applicable. In the court below, the defendants demurred upon two grounds, neither of which was well taken. The court sustained the demurrer upon one of the reasons assigned. The defendants concede that the reasons assigned were not good; but they now assign a third ground for demurrer, the first provided by our Code, and, in substance, now contend that we should, for this reason, affirm the judgment, because, had this third ground for demurrer been presented in the trial court, it would have been good, but that they will raise it here for the first time, because they have a right to, and which will thus prevent the plaintiffs from having any opportunity to amend.

We concede, when it is proper to be considered, that the demurrer is well taken, and, had it been presented to the trial court, would unquestionably have been sustained, but in which case plaintiffs would have been given the right to amend.

Had the judgment attempted to dispose of the subject-matter on this complaint, we would be compelled to reverse it for this reason; but, under ...