School Dist. No. 38, Boulder County v. Waters

• Decision Date: 14 March 1904
• Citation: 20 Colo.App. 106,77 P. 255
• Parties: SCHOOL DIST. NO. 38, BOULDER COUNTY, v. WATERS. [*]
• Court: Colorado Court of Appeals

77 P. 255

20 Colo.App. 106

SCHOOL DIST. NO. 38, BOULDER COUNTY, v. WATERS. ^[*]

Court of Appeals of Colorado

March 14, 1904

Appeal from Boulder County Court.

Action by Lillian Waters against School District No. 38, in the county of Boulder and state of Colorado. From a judgment of the county court, affirming a judgment of the justice of the peace in favor of plaintiff, defendant appeals. Affirmed.

Patton & Hawkins, for appellant.

Esteb &amp Wolff, for appellee.

MAXWELL J.

Appellee sued appellant before a justice of the peace of Boulder county to recover upon an alleged breach of contract of employment as a school teacher. Appellant, specially appearing, moved to quash the summons and abate the suit upon the grounds that defendant had not been served with summons by any officer authorized by law to serve the same that by the return it did not appear that the defendant was summoned, that it did not appear from the record that the justice of the peace had authority to appoint a special constable, and that the defendant had not been served. The above motion was overruled by the justice. Defendant did not participate in the trial, which resulted in a judgment against it, from which an appeal was taken to the county court, where the defendant specially appeared and filed another motion to quash the summons upon substantially the same grounds as before, adding thereto two paragraphs which will be hereafter noticed. The county court overruled this motion. Upon a later day a trial was had defendant not appearing, which resulted in a judgment against defendant for $120, from which this appeal.

Mill's Ann.St. § 2687, is as follows: "Upon the trial of all appeals before the county court, no exception shall be taken to the form of service of the summons issued by the justice of the peace, nor to any of the proceedings before him; but the court shall hear and determine the cause in a summary way, according to the justice of the case, without pleading in writing." The foregoing section was originally enacted in 1861 (Laws 1861, p. 232, § 46), where the word "or" is found, instead of "of," between "form" and "service," which makes the section read, "No exception shall be taken to the form or service of summons"--a much broader provision than that contained in 1 Mills' Ann.St. § 2687, above quoted. See, also, Rev.St.1868, p. 407, § 46, and Gen.Laws 1877, p. 559, § 1527. The error first appears in Gen.St.1883, p. 633,§ 1987. The General Statutes and Mills' Annotated Statutes being compilations, the Laws of 1861 and the Revised Statutes of 1868 control.

All irregularities and defects in the service of the summons, the form thereof, or even the want of process, were waived by appellant in taking an appeal from the justice to the county court. Deitz v. City of Central, 1 Colo. 323, 330; Wyatt v. Freeman, 4 Colo. 14, 15; Charles v. Amos, 10 Colo. 272, 277, 15 P. 417; C.C.R. Co. v. Caldwell, 11 Colo. 545, 19 P. 542; Paul v. Rooks, 16 Colo.App. 44, 47, 63 P. 711.

Appellant contends that the record shows that this action was brought before a justice of precinct No. 16, whereas the defendant school district is situated in precinct No. 8, of Boulder county, and that this question was raised before the county court by the fourth and sixth paragraphs of its motion to dismiss, filed in the county court, to wit:

"(4) Because the justice of the peace who assumed to try the above-entitled action had no jurisdiction to try the same."

"(6) Because this court can acquire no more jurisdiction than the justice of the peace had in this action."

We will concede that the record shows that the action was commenced before a justice of a township in which the debtor or person sued did not reside, and that this question was raised before the county court by the above-quoted paragraphs of the motion. It is conceded by appellant that this question was not raised before the...