Nelson v. Chittenden

• Decision Date: 11 November 1912
• Citation: 127 P. 923,23 Colo.App. 123
• Parties: NELSON et al. v. CHITTENDEN et al.
• Court: Colorado Court of Appeals

127 P. 923

23 Colo.App. 123

NELSON et al. v. CHITTENDEN et al.

Court of Appeals of Colorado

November 11, 1912

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

Action by Peter Nelson and others against George F. Chittenden and others. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded.

Philo B. Tolles and Thomas D. Cobbey, both of Denver, for appellants.

John F Mail, of Denver, for appellees.

CUNNINGHAM J.

Appellants plaintiffs below, bring their case to this court for review on appeal from a judgment of dismissal. The correctness of the trial court's judgment turns upon a ruling admitting a judgment roll of the county court of Washington county. The judgment record in question discloses: (a) That the summons and the complaint in the action were signed, "August Muntzing and Egbert More, Attorneys for Plaintiffs;" (b) that E. More served the summons upon two of the defendants in said action in the county court Peter and Andrew Nelson, being the plaintiffs in this action (c) that E. More signed a praecipe for a default, as attorney for plaintiff.

It has been ruled by our Supreme Court in Nelson et al. v Chittenden et al., 123 P. 656-658, that the attorney for a plaintiff may not serve the summons in a cause. It will thus be seen that the controversy before us for our determination is reduced to the sole question: Should the trial court have assumed, there being no evidence to the contrary, that Egbert More, whose name was signed to the complaint and the summons as attorney for the plaintiffs, and E. More, as the name appeared on the praecipe for default, were one and the same person as the E. More whom the judgment record showed served the summons on behalf of the plaintiffs? Upon the authority of Coon v. Rigden, 4 Colo. 275, and Filkins v. O'Sullivan, 79 Ill. 524, this question must be answered in the affirmative; that is to say, the trial court should have presumed, from the facts above stated, which appeared on the face of the judgment record or roll, that the Egbert More whose name appeared to the complaint and the E. More whose name appeared as attorney for the plaintiff to the praecipe for default, and the E. More who made the return of the service of the summons, were one and the same person. Hence the trial court committed reversible error in overruling plaintiff's objection to the introduction of the judgment roll, which constituted the sole...