Roberts v. Roberts

• Decision Date: 28 November 1892
• Citation: 3 Colo.App. 6,31 P. 941
• Parties: ROBERTS v. ROBERTS.
• Court: Colorado Court of Appeals

31 P. 941

3 Colo.App. 6

ROBERTS v. ROBERTS.

Court of Appeals of Colorado

November 28, 1892

Error to Arapahoe county court.

Action by Mary E. Roberts against William T. Roberts for divorce. From a judgment for plaintiff, defendant brings a writ of error. Judgment reversed.

Benjamin Staunton, for plaintiff in error.

BISSELL J.

The county court from which this case comes on a writ of error was without jurisdiction to enter any judgment in the action. In 1890 Mrs. Roberts brought suit in Arapahoe county to obtaing a divorce from her husband. According to the record, the husband lived in Kansas City. To effect the service of summons, Mrs. Roberts filed her affidavit showing the nonresidence, and thereon procured an order of publication. The summons was published according to the order. When the publication was completed the plaintiff applied for a default for want of an answer, and filed proof of the publication. This was furnished by an affidavit of the publisher which showed the advertisement of the attached summons for the statutory period. It did not state that a copy of the summons was deposited in the post office directed to the defendant at his last-known place of abode nor was this proof supplied by the affidavit of any other person. The judgment rests on the affidavit made by the publisher. Its sufficiency was questioned, and the court ought not to have entered judgment on that evidence. It is difficult to apprehend how the court fell into the error. The question was disposed of in the case of O'Rear v Lazarus, 8 Colo. 608, 9 P. 621; and ever since that time it has been the law in Colorado that the proof must show a compliance with the statute respecting the mailing of a copy of the summons to the defendant to justify the entry of judgment. No good purpose would be subserved by a restatement of the reasons on which the rule rests; and it is enough to state, in conformity with that opinion, that all the steps which the statute prescribes must not only be followed, but proven, to confer jurisdiction on the court over the absent defendant. There was an idle attempt, apparently, to obviate this difficulty, by the introduction of parol testimony tending to show that the defendant had information of the pendency of the suit. This proof was offered on the hearing of a motion to set aside the judgment because of this jurisdictional defect. In what way it was conceived that the difficulty could be...