Thomas v. Colorado Nat. Bank

• Decision Date: 16 October 1888
• Citation: 11 Colo. 511,19 P. 501
• Parties: THOMAS v. COLORADO NAT. BANK.
• Court: Colorado Supreme Court

19 P. 501

11 Colo. 511

THOMAS v. COLORADO NAT. BANK.

Supreme Court of Colorado

October 16, 1888

Commissioners' decision. Appeal from Arapahoe county court.

This was an action by the appellee, Colorado National Bank resident of Arapahoe county, against the appellant, Theodore H. Thomas, resident of Gunnison county, upon a promissory note made and delivered at Gunnison, April 18, 1884, whereby the appellant, for value received, promised to pay to the order of Struby, Estabrook & Co., in 90 days thereafter, at the Iron National Bank, in Gunnison, the sum of $500, with interest from date at the rate of 12 per cent. per annum, and 10 per cent. as attorney's fees, if suit should be instituted thereon; which note had been duly indorsed to the appellee. The complaint was filed in the said county court of Arapahoe county, July 30, 1884, and summons then issued. The return thereon was as follows:

' State of Colorado, Gunnison County--ss.:

'OFFICE OF THE SHERIFF OF SAID COUNTY, GUNNISON, August 1, 1884.

'I do hereby certify that I received the within summons on the 1st day of August, A. D. 1884, and personally served the same on the 1st day of August, A. D. 1884, by delivering a copy of said summons to the within named defendant, Theodore H Thomas, personally, at West Gunnison, in said county.

'C W. SHORES, Sheriff,

'By JOHN F. HALL, Deputy.'

On September 8, 1884, the said appellant appeared by counsel specially, and moved the court to quash the summons, for reasons stated as follows: ' First, because the said summons was not issued to the county, nor to the sheriff of the county, in which the defendant was served or resided second, because it does not appear from the summons nor the return thereon, that C. W. Shores was, at the time the same purports to have been served, the duly-qualified sheriff of Gunnison county; third, because the summons, as well as the return thereon, are each insufficient and illegal, and give the court no jurisdiction over the defendant; fourth, because this court has no jurisdiction over this defendant, nor over the subject-matter of the supposed suit; fifth, because it appears from the complaint that the said action is based upon a promissory note which was executed at Gunnison, Colo., and specially made payable at the Iron National Bank of Gunnison, Gunnison county, Colo.; sixth, because it appears from the return on said summons that the said summons was served on defendant in Gunnison county, state of Colorado, by one Hall, claiming to act as deputy-sheriff of one C. W. Shores, without the jurisdiction of this court, and not within the county of Arapahoe; seventh, because it appears from the affidavit of the defendant, hereto attached, that the said defendant is now, and was at the time of the supposed service of said summons, and the commencement of this action, a resident of Gunnison county, state of Colorado.' Hearing was had thereon, December 5, 1884, and the court denied the motion, and adjudged as follows: 'Now, on this day, this cause coming on to be heard upon the motion of defendant to quash the summons and dismiss this cause, it is argued by counsel,--Messrs. Bartels & Blood, for said plaintiff; Messrs. Dawson & Lipscomb, for said defendant,--specially; at the conclusion of which, and the court being fully advised in the premises, it is considered by the court that the said motion be, and it is hereby, overruled; and thereupon defendant says he will file no appearance, but will stand by his motion; and on the motion of said plaintiff the default of said defendant, for failure to file an answer or demurrer to plaintiff's complaint, it is hereby entered according to law, and it is ordered that judgment be entered herein in favor of said plaintiff, and against defendant, in the sum of $587.50. Whereupon it is ordered and adjudged and decreed by the court that the plaintiff have and recover of said ...