People v. McKelvey
| Decision Date | 12 October 1903 |
| Citation | 19 Colo.App. 131,74 P. 533 |
| Parties | PEOPLE v. McKELVEY. [*] |
| Court | Colorado Court of Appeals |
Error to District Court, Arapahoe County.
Action by the people against Vernon McKelvey, as administrator of the estate of C.H. O'Hara, deceased. Judgment in favor of defendant, and plaintiff brings error. Reversed.
H.A Lindsley, Dist. Atty., and David G. Taylor, for the People.
Gaines M. Allen, for defendant in error.
The complaint in this case alleges that January 13, 1896, in a certain action then pending in the district court of Arapahoe county, wherein the plaintiff in error was plaintiff, and C.H. O'Hara and Mary A. O'Hara were defendants judgment was rendered against said defendants for the sum of $500, together with $5.25 costs; that said judgment remains unsatisfied and in full force and effect; that on January 19 1899, C.H. O'Hara departed this life, and Vernon McKelvey, defendant in error, was duly appointed administrator of the estate of said C.H. O'Hara, and qualified as such--and prays judgment against McKelvey for $505.25 and interest. In the action at bar a petition to vacate and set aside the judgment rendered January 13, 1896, against C.H. and Mary A. O'Hara, was filed by the defendant, McKelvey, which alleged the following facts: That on or about the 18th day of October, 1893, an information was filed in the district court of Arapahoe county charging C.H. O'Hara with a crime; that the case was set for trial March 30, 1894; that said O'Hara neglected and failed to appear, and default was duly entered against him and his surety, Mary A. O'Hara, December 22 1894; that on January 26, 1895, O'Hara surrendered himself to court, the order forfeiting the bond was vacated and set aside, and trial of the case set for March 7, 1895; that March 2, 1895, the trial order was vacated, and a nolle prosequi entered; that on the 13th day of January, 1896, the judgment sued on in this action was taken against C.H. O'Hara and Mary A. O'Hara. The petition sets up other matters which might have availed as a defense in the action on the bond, wherein judgment was had against C.H. and Mary A. O'Hara, but these matters are not material to a determination of this controversy, and will not be considered. No answer or reply was filed to this petition, and therefore the allegations thereof stand admitted. Upon the hearing of the petition the district court made the following ruling: "Ordered that said petition be granted, and that said judgment in case No. 22,005, against said C.H. O'Hara and Mary A. O'Hara, be vacated and set aside upon the payment of all costs occasioned by the forfeiture of a certain bond in the criminal division of this court, in the criminal case against C.H. O'Hara, and that this cause be thereupon dismissed at the cost of said plaintiff." Briefly stated, the facts are: A judgment in a civil action was taken against O'Hara on the forfeited bond; the administrator of the estate of O'Hara, defendant in error, here, is sued upon this judgment; and in this suit upon the judgment he filed a petition asking that the judgment sued on be set aside. The petition in no manner attacks the jurisdiction of the court to render the judgment sued on in this action. It must therefore be presumed that the district court had jurisdiction of the person of the defendant and of the subject-matter and that its proceedings were regular, and this presumption is conclusive until the contrary is made to appear. Brennan v. State Bank, 10 Colo.App. 368-373, 50 P. 1076. The ruling of the district court granting the petition and dismissing the cause is assigned as error upon the grounds:
1. The judgment sued on, being the judgment of a court of general jurisdiction, cannot be attacked except in a direct proceeding, unless the judgment is void. Brown v. Tucker, 7 Colo. 30, 1 P. 221; Hughes v. Cummings, 7 Colo. 138, 203, 2 P. 289, 928; Rawles v. People, 2 Colo.App. 501-506, 31 P 941; Cochrane v. Parker, 12 Colo.App. 169-174, 54 P. 1027. In Brown v. Tucker, supra, our Supreme Court has said: "The decided weight of authority is to the effect that when jurisdiction has been obtained by the service of process, actual or constructive, all subsequent proceedings...
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