Stubbs v. McGillis

• Decision Date: 06 July 1908
• Citation: 96 P. 1005,44 Colo. 138
• Parties: STUBBS et al. v. McGILLIS et al.
• Court: Colorado Supreme Court

96 P. 1005

44 Colo. 138

STUBBS et al. v. McGILLIS et al.

Supreme Court of Colorado

July 6, 1908

Error to District Court, La Plata County; James L. Russell, Judge.

Action by Frank W. Stubbs and another against D. J. McGillis and another. Judgment for defendants, and plaintiffs bring error. Affirmed and remanded for further proceedings.

Wilson & McClosky, for plaintiffs in error.

Ritter & Buchanan, for defendants in error.

BAILEY J.

In 1899 the plaintiffs in error instituted an action against defendants in error in the district court of La Plata county to recover a judgment upon two promissory notes. The sheriff made return of the summons, which was issued, and that he had served the same by delivering a true copy of the summons, together with a copy of the complaint, 'to the within-named defendants M. J. McGillis and Peter Monteith,' in La Plata county, upon the '10th day of February, A. D. 189_.' No answer was filed to the complaint, and no appearance entered upon the part of either of the defendants, and judgment was rendered by default on the 3d day of April, 1899. The judgment recites, inter alia 'that the said defendant has been regularly served with process and has failed to answer the complaint herein.' Upon the 17th of October, 1904, garnishee summons in this action was served upon the First National Bank of Durango. The bank answered that 'D. J. McGillis has a credit balance with us of $1,331.65.' Upon the 7th of November 1904, the defendant D. J. McGillis filed a petition in the district court alleging that no service of summons was had upon him in the original action, that he did not learn of the rendition of the judgment until after the 17th of October 1904, and made certain allegations concerning the moneys on deposit in the bank for the purpose of showing that they rightfully belonged to parties other than the defendant, and then filed a motion to vacate the judgment entered in 1899 for the reason that the summons had never been served upon him. On the 19th of December, 1904, the plaintiffs filed a motion that the court 'require and permit Joseph P. Airy, the one time acting sheriff in and for said La Plata county, and who served the summons in the above-entitled action as such sheriff, to amend his return on said summons so as to show the facts in regard to said service.' Attached to the motion was the affidavit of the sheriff, wherein he stated: That he served the summons upon defendants D. J. McGillis and Peter Monteith by delivering to each of them within the county of La Plata a copy of the summons, together with a copy of the complaint, upon the 10th day of February, A. D. 1899; that by inadvertence and mistake in writing the return he wrote the name of M. J. McGillis, instead of D. J. McGillis; and that he omitted to place the figure 9 after 189, the year in which the service was made. These motions were heard by the court at the same time, and at the hearing the defendant McGillis testified: That the summons was never served upon him, but that he had heard of the pendency of the case and the entering of the judgment three or four years previous; that the statement made in his affidavit that he had not heard of the existence of the judgment until 1904 was a mistake; and that in 1899, so far as he knew, there was no person residing in La Plata county by the name of M. J. McGillis. Airy, the former sheriff, testified that he wrote the return on the summons, but that he had no present recollection of serving it, had no recollection of serving either Monteith or McGillis, and that he did not know of any M. J. McGillis in the county, and never heard of one. The court granted the motion to vacate the judgment and denied the motion to amend the return, and the matter comes here upon error; plaintiffs contending that the court erred in both rulings, that the facts as shown by the testimony and the record proved indisputably that the summons was served upon the defendant McGillis, and that the writing of the initial 'M.,' instead of 'D.,' was a clerical error. They also assert that the recital in the judgment rendered in 1899 to the effect that there had been a service upon defendant is a verity and overcomes the assertion made in the return that the service was made upon M. J. McGillis. They further contend that the defendant, having failed to allege that he had a meritorious defense to the cause of action, was in no position to complain of the rendition of the judgment or to ask to have it set aside, and that, having waited for so great a length of time before moving against the judgment, he should be estopped from denying its validity.

If the evidence was sufficient to enable the court to determine that no service of the summons had been made upon the defendant it became his duty to set the judgment aside. Keely v. East Side Imp. Co., 16 Colo.App. 365, 65 P. 456; Smith v. Morrill, 12 Colo.App. 233, 55 P. 824; DuBois v. Clark, 12 Colo.App. 220, 55 P. 750; Great Western Min. Co. v. W. of A. Min. Co., 14 Colo. 90, 23 P. 908. In Golden Paper Company v. Clark, 3 Colo. 321, it is said that application for leave to an administerial officer to amend his return upon process may generally be regarded with liberality, that it is the memory of the officer against that of ...