Smith v. Post Printing & Publishing Co.

• Citation: 68 P. 119,17 Colo.App. 238
• Parties: SMITH et al. v. POST PRINTING PUBLISHING CO.
• Decision Date: 10 March 1902
• Court: Colorado Court of Appeals

68 P. 119

17 Colo.App. 238

SMITH et al. v. POST PRINTING PUBLISHING CO.

Court of Appeals of Colorado

March 10, 1902

Appeal from Arapahoe county court.

Action by the Post Printing & Publishing Company against Robert F Smith and others. From a judgment for plaintiff, defendants appeal. Reversed.

George S. Adams, Petrus Nelson, and T.M Robinson, for appellants.

James H. Brown and Andrew W. Gillette, for appellee.

WILSON P.J.

Defendant Robert F. Smith contracted with the plaintiff printing and publishing company for a route for the circulation and sale of the Denver Evening Post, a publication of plaintiff. The contract was in writing, and attached to or indorsed upon it was the following, also in writing, signed by the other three defendants: "The Post Printing and Publishing Company: You are hereby authorized to furnish Robert F. Smith copies of your paper on terms above stated the undersigned agreeing to become responsible to you for the prompt payment of all bills for such papers, and, in case payment is not made each month as specified above, to pay the Post Printing and Publishing Company the arrears upon demand." Plaintiff claimed that Smith had violated the contract by failing to make payment in accordance with its terms, and instituted this suit against him and his guarantors or sureties for the recovery of a balance alleged to be due for papers furnished. The suit was begun in the county court of Arapahoe county. Summons issued to and was served upon all of the defendants, in Boulder county, on April 4th. On May 3d the defendants filed a motion to change the place of trial to Boulder county, which they claimed was the proper county for trial, under the provisions of Code, § 27, because, as shown by affidavit, and not disputed, the defendants were at the commencement of the action, and ever since had been, residents of said county of Boulder; that the service of summons was had upon them in said county of Boulder; and that the contract upon which the action was brought was to be performed in said county of Boulder. On the same day defendants also filed a general demurrer to the complaint.

It is well settled that the defendants' motion for change of place of trial was well taken, and that the court had no discretion except to allow it, unless one or both of the contentions of the appellee in support of the ruling of the court are correct. Smith v. People, 2 Colo.App. 99, 29 P 924; Pearse v. Bordeleau, 3 Colo.App. 351, 33 P. 140; Railroad Co. v. Cahill, 8 Colo.App. 158, 45 P. 285. The position of plaintiff is: First, that the defendants waived their right to the statutory privilege of changing the place of trial by filing a demurrer to the complaint, and thereby entering a general appearance; second, that the showing was not sufficient, because the affidavit did not negative all of the provisions of Code, § 27, whereby a county other than that in which the defendants resided and were served with process might be a proper place of trial. We think neither position of the plaintiff is tenable. Neither upon reason nor principle was it necessary, as contended, that defendants should have appeared only specially for this motion in order to have saved their rights. A special appearance is resorted to and necessary where a defendant denies that the court has secured jurisdiction over his person, by reason of some defect in the process of the court or of improper service. In such cases the defendant is in the position of one saying, "The court has not secured jurisdiction over me, and hence I cannot be compelled to appear in the court to make any pleading whatever." The only object of process being to give a defendant notice, and compel him to come into court and defend, it is obvious that if he voluntarily comes in, even under a defective summons or with defective service, makes a general appearance, and enters upon his defense, he thereby submits himself to the jurisdiction of the court; and, the court having jurisdiction of the subject-matter, he thereby waives, and ought to waive, the privilege of thereafter objecting to the insufficient process or service. An entirely different proposition is here involved. In this state the jurisdiction of courts of record is coextensive with the boundaries of the state. Fletcher v. Stowell, 17 Colo. 94, 28 P. 326. A suit may be instituted in a court of record, in any county, and summons issued to and be served in any other county of the state, and the service will be good, and the court will thereby acquire full and complete jurisdiction of the person. In certain designated cases, however, the Code provides that even though the court has acquired complete jurisdiction of the person, and has also jurisdiction of the subject-matter, the defendant may come in, and upon application in apt time, as a matter of right, devest the court of its jurisdiction, and compel the removal of the cause to another county for trial. Such is the case presented here. The county court of Arapahoe county acquired full and complete...