Seeley v. Taylor

• Decision Date: 19 October 1891
• Citation: 28 P. 461,17 Colo. 70
• Parties: SEELEY v. TAYLOR. [1]
• Court: Colorado Supreme Court

28 P. 461

17 Colo. 70

SEELEY v. TAYLOR. ^[1]

Supreme Court of Colorado

October 19, 1891

Error to Arapahoe county court.

Action by Nahum P. Seeley against Amy A. Seeley for divorce. Decree for plaintiff. Plaintiff having died, his executor, George H Taylor, was substituted as plaintiff, and on petition of defendant was ordered to show cause why the decree should not be set aside. Petition denied.

The other facts fully appear in the following statement by ELLIOTT, J.:

This was an action for divorce, commenced in the county court, by Nahum P. Seeley, plaintiff, against Amy A. Seeley, defendant. Summons was issued on February 15, 1888, and was followed by the usual steps for obtaining service by publication. The last publication was on March 21, 1888. Default was entered on April 20th, and final decree was rendered on May 9, 1888. The record further shows the following in substance: On October 25, 1888, the defendant, Amy A. Seeley, applied to the county court, upon motion and affidavit, to vacate and set aside the decree of divorce, and to be allowed to defend said action on the merits. In support of her application defendant alleged inter alia that she had a meritorious defense to the action; that summons had never been served upon her in person or in any other legal manner as she believed; and that she had never had her day in court etc. On November 2, 1888, the plaintiff, in answer to defendant's application, filed his affidavit, in which among other things, he alleged in substance that the defendant had, with a full understanding of the nature of the action, admitted in writing that she had received valid and sufficient service of the summons. Two copies of the summons, with the defendant's alleged written admissions thereon, were produced by plaintiff and filed in connection with his said affidavit. On December 15, 1888, the plaintiff below having died, George H. Taylor, his executor, was substituted as plaintiff, and thereupon he was ordered to show cause why the former decree should not be set aside as prayed in the petition of defendant. In response to said rule Taylor filed his answer, alleging in substance that the summons in said cause was duly served in person upon the said defendant upon the 6th day of March, 1888, by delivering to said defendant a true copy thereof; that, the copy of said summons being delivered to defendant, she duly and regularly admitted the service and reception of the same, and, among other things, indorsed upon said summons that she would not appear to said cause, nor defend the same; that she thereupon returned said copy to the then plaintiff, but now deceased; that at the same time she wrote a letter to the attorney for said plaintiff, urging him to secure the decree for plaintiff as speedily as possible, and that said decree was duly entered after said service of summons, and after said acknowledgments and requests, in good faith; that afterwards, and relying upon the faith and credit of such decree, the said N. P. Seeley intermarried with one Mary A. Nettleton; and that it was only after being notified of such marriage that defendant interposed her said motion, and that only questions involving property rights or a desire to gratify personal ill will can now be urged for vacating said decree. The defendant replied in substance to the answer of Taylor that by the misrepresentations of plaintiff, N. P. Seeley, she was misled as to the true import and meaning of the summons; denied that she ever admitted the service of said summons, or that she indorsed upon said summons that she would not appear and defend said cause, or that she ever wrote plaintiff's attorney urging him to secure the decree for plaintiff, as alleged, etc. A petition of intervention was also filed by Mary A. Seeley, as the wife of the plaintiff, N. P. Seeley, by the second marriage, the averments of which were in substance the same as the answer of Taylor. This petition was duly traversed by answer filed by defendant; and said answer was in turn replied to by Mary Seeley. The court heard evidence as well as the allegations of the parties upon the motion of the defendant to vacate the decree of divorce, and upon the conclusion thereof, on February 4, 1889, overruled said motion. To reverse the decree of divorce the defendant Amy Seeley sued out writ of error from this court on January 11, 1890.

WRITS--SERVICE BY PUBLICATION--PREMATURE JUDGMENT--AMENDMENT OF RECORD.

1. Where the service of summons is by publication, the court acquires jurisdiction and control of all subsequent proceedings at the expiration of 10 days from the date of the last publication.

WRITS--SERVICE BY PUBLICATION--PREMATURE JUDGMENT--AMENDMENT OF RECORD.

2. A judgment based upon constructive service alone, though rendered after jurisdiction is acquired, may nevertheless be reversed for error if rendered before the legal time for answering expired.

WRITS--SERVICE BY PUBLICATION--PREMATURE JUDGMENT--AMENDMENT OF RECORD.

3. Where a judgment was prematurely rendered as upon constructive service, when in fact there had been personal service, and the legal time for answering under such personal service had expired before the rendition of judgment, held, that the fact of such personal service might be shown by an amendment of the record upon proper notice, or by other equivalent proceedings under the practice in this state so as to uphold the judgment.

Syllabus by the Court

1. Where the service of summons is by publication, the court acquires jurisdiction and control of all subsequent proceedings at the expiration of 10 days from the date of the last publication.

2. A judgment based upon constructive service alone, though rendered after jurisdiction is acquired, may nevertheless be reversed for error if rendered before the legal time for answering expired.

3. Where a judgment was prematurely rendered as upon constructive service, when in fact there had been personal service, and the legal time for answering under such personal service had expired before the rendition of judgment, held, that the fact of such personal service might be shown by an amendment of the record upon proper notice, or by other equivalent proceedings under the practice in this state so as to uphold the judgment.

H. B. Johnson, for plaintiff in error.

Patterson & Thomas, for defendant in error.

ELLIOTT, J., ( after stating the facts.)

The assignments of error are to the effect-- First, that the county court erred in rendering judgment without acquiring jurisdiction over the defendant, Amy A. Seeley second, that the court erred in entering default on the thirtieth day and in rendering final decree on the forty-ninth day after the last publication of the summons. By the Code of 1887, §§ 41, 44, it is provided that when the service of summons is by publication it shall be deemed complete at the expiration of 10 days from the date of the last publication, and that from the time of the service of the summons the court shall be deemed to have acquired jurisdiction and to have control of all subsequent proceedings. The default and judgment not having been rendered until more than 10 days after the last publication of the summons, the objection that the court acted without acquiring jurisdiction over the defendant is not well taken. Nevertheless, under the statute as it then existed, the default and judgment were both prematurely entered; and the decree, if based upon such service alone, is subject to reversal for error. See Code 1887, §§ 34, 41; also, Conley v. Morris, 6 Colo. 212; O'Rear v. Lazarus, 8 Colo. 608, 9 P. 621; Morton v. Morton, 16 Colo. ----, 27 P. 718, construing similar provisions of the original Code. It appears by the supplemental record that between five and six months after the rendition of final judgment the defendant, Amy A. Seeley, made application in writing to the county court to be relieved from the decree of divorce. She asked that the decree might be set aside, and that she might be allowed to depend. The plaintiff, first, and after his decease his representatives, under a rule of court, filed answers to the petition of defendant, and the defendant in turn filed replications to said answers. On the part of the defendant Amy it was alleged that she had not been served with summons, and had not appeared in the action. By the answers thereto it was alleged that the summons was duly served upon said defendant by delivering to her a true copy thereof more than 60 days before the final decree was rendered, and that upon receiving said copy she admitted such service in writing. Thus a formal, material, and substantial issue, relating to the service of the summons, was framed, tried, and determined in the action. By the allegations and issue thus framed and submitted the proceeding on the part of defendant was in the nature of an action to impeach and set aside a judgment for want of service of summons. On the other side it was in the nature of a proceeding to amend the record in the action so that the same might show that there had been valid and sufficient service of summons duly made upon defendant, sufficient in form, time, and substance to meet the requirements of the statute and sustain the judgment theretofore rendered, an extraordinary proceeding from a common-law standpoint, perhaps, but not altogether unprecedented under the reformed procedure. The proceeding was voluntarily commenced by plaintiff, was fairly within the scope of the statute, and the issue thus framed was triable by the court. See Code, §§ 75, 173; also, Hexter v. Clifford, 5 Colo. 168; Allen v. Tritch, Id. 222; Wilson v. Hawthorne, 14 Colo. 530, 24 P. 548. The effect of the trial was not to determine the merits of the original action, but to determine whether or not the...