Smith v. Aurich

• Decision Date: 01 December 1882
• Citation: 6 Colo. 388
• Parties: SMITH ET AL. v. AURICH ET AL.
• Court: Colorado Supreme Court

6 Colo. 388

SMITH ET AL. v. AURICH ET AL.

Supreme Court of Colorado

December, 1882

Error to County Court of Lake County.

THE case is stated in the opinion.

Messrs COSTON and OWENS, and Messrs. GEORGE, MAXWELL and PHELPS, for plaintiffs in error.

Mr. J McD. LIVESAY and Mr. N. ROLLINS, for defendants in error.

BECK C. J.

Robert Aurich and Jacob Mengel brought suit against the plaintiffs in error in the county court of Lake county, and at the November term thereof, 1880, recovered a judgment by default for the sum of $2,000, being the full amount of damages claimed in their complaint.

The cause of action stated in the complaint was, substantially that a short time before suit commenced, Aurich and Mengel being indebted to Smith, one of the defendants below, executed to him three promissory notes, payable at different dates, and to secure payment of the notes executed a chattel mortgage upon the fixtures, machinery, furniture and stock in trade of the Arkansas Brewery, situate near Leadville, also upon a span of mules, double harness and wagon. That by the terms of the mortgage the plaintiffs were to retain possession until default in the conditions thereof. The complaint further charges that Smith fraudulently conspired and combined with the other defendants, naming them, to cheat, defraud and swindle the plaintiff's out of their property, and its value, and in furtherance of the conspiracy forcibly took possession of the whole of said property and fraudulently sold the same at public auction, none of the notes being due and no default having occurred as to any of the conditions of the mortgage.

Plaintiffs further charge that the sale was so fraudulently conducted for the purpose of preventing competition thereat, that the several articles of property sold at nominal prices, greatly below their value.

The complaint details the several fraudulent acts perpetrated and wrongs done to the plaintiffs by the defendants, and concludes by laying plaintiffs' damages at $2,000.

The defendants failed to appear and defend the action, and judgment by default was entered against them for the sum of $2,000.

The defendants afterwards, at the same term of court, by special appearance for that purpose only, applied to have the judgment vacated, and upon refusal, prayed an appeal to the district court, which was also denied. They then sued out this writ of error.

The first error assigned is: 'The complaint unites two causes of action, contrary to law.'

In our judgment there is no foundation for this assignment. The form and substance of the complaint is authorized by the 71st section of the code.

Several other errors are assigned, but it is only necessary to consider the error relating to the sufficiency of the summons, as the case may be disposed of on that alone. This error as assigned is, that the summons does not state the cause of action or its nature.

It is evident that the summons does not conform to the substantial requirements of section 31 of the code in this particular. The provision is that the summons shall state 'the cause and general nature of the action.'

The statement in the summons is, 'the said action is brought to recover the sum of $2,000 damages, alleged to have been sustained by said plaintiffs, in consequence of certain acts and doings of said defendants, etc., as will more fully appear by the complaint on file herein, to which reference is here made.'

It is clear that this writ does not furnish to the defendants that information as to the cause and nature of the action which is contemplated by the statute. It notifies them that money is claimed to an amount limited by the jurisdiction of the court, but whether the damages claimed arise by virtue of a contract entered into by the defendants, oral or in writing, or by reason of injuries done to person or property, or by other and what acts of the defendants, is not stated.

The evident intention of the code provisions is, that the summons shall contain such a statement of the cause of action as will inform defendants of the particular matter or transaction concerning which they are called upon to defend. Such information cannot be obtained from this summons alone.

The phrase, 'in...