White House Mountain Gold Min. Co. v. Powell

• Decision Date: 03 November 1902
• Citation: 70 P. 679,30 Colo. 397
• Parties: WHITE HOUSE MOUNTAIN GOLD MIN. CO. v. POWELL.
• Court: Colorado Supreme Court

70 P. 679

30 Colo. 397

WHITE HOUSE MOUNTAIN GOLD MIN. CO. v. POWELL.

Supreme Court of Colorado

November 3, 1902

Error to Ouray county court.

Action by E. H. Powell against the White House Mountain Gold Mining Company. Judgment for plaintiff. Defendant brings error. Reversed.

Story &amp Story, for plaintiff in error.

Henry &amp Sigfrid, for defendant in error.

CAMPBELL, C.J.

Only two questions are pursented by this writ of error: First, was the sheriff's return upon the summons sufficient to give the trial court jurisdiction of defendant? Second, if insufficient, was there a waiver of service? In the complaint it is alleged that C. H. Wesseler had been appointed as the agent and custodian of defendant's property in Ouray county, and, at the request of defendant Wesseler performed certain services for it amounting to about $1,500, which had not been paid, and before the beginning of the action Wesseler had assigned the account therefor to the plaintiff, who was then the owner and holder of the claim. The return of the sheriff upon the summons was that he had delivered a true copy thereof, together with a copy of the complaint, 'to the within named C. H. Wesseler, as the general agent of said corporation, there being no president secretary, treasurer, cashier, stockholder, or other chief officer in the said county, and the said Wesseler acknowledged to me that he is the general agent of the within named defendant.'

1. It is argued that the statement of the sheriff that he served the writ on Wesseler 'as' the general agent of the corporation is not equivalent to a statement that he served it upon Wesseler, the general agent; the point apparently being that the insertion of 'as' does not make the certificate say that service was had upon a general agent. If there be a distrinction between a service on 'A. B., general agent of defendant.' and 'A. B., as general agent,' it is not material here. This action was based on a claim for services rendered defendant by Wesseler. He assigned the claim to plaintiff. In the action of plaintiff to enforce collection, Wesseler verified the complaint, and the return shows that the sheriff's only information or source of knowledge that Wesseler was defendant's general agent was the statement of Wesseler himself. In the circumstances, such return, resting upon the mere declaration of the alleged agent, does not show a valid service on defendant. There is another potent reason for holding this service had. If not by the weight of authority, certainly by courts of high standing, it has been held that the assignor of a chose in action impliedly warrants its validity, and that the claim is collectible. Cases collated in 2 Am. & Eng. Enc. Law (2d Ed.) 1090 et seq. But, if that were not so, it is evident that Wesseler was interested in the result of this action. It is his claim for services that is sought to be collected. Naturally he would want plaintiff to recover, even if a failure imposed no legal liability on him, and it would be to his interest to withhold from defendant the fact that the action was begun. We do not say that he did or would. But courts will not sanction a doctrine that would inevitably lead to fraud, and place an agent in a position where, as between his assignee and his principal, he cannot be true to one without being, in a measure, false to the other. To hold this service good would be as obnoxious to a fine sense of justice as to declare that service on a plaintiff gives the court jurisdiction of the person of defendant. Service on Wesseler, therefore, was not tantamount to service on the defendant. Cloud v. Inhabitants of Town of Pierce City, 86 Mo. 357; Mining Co. v. Edwards, 103 Ill. 472.

2. The defendant below (plaintiff in error here) specially appeared in the county court, and moved to quash the service of the summons upon the ground that it was not served upon the agent designated by statute. This motion was overruled, and afterwards judgment was rendered in plaintiff's favor. Thereafter the defendant company filed in the county court an appeal bond, by which it sought to take the cause to the district court of Ouray county. Afterwards, upon proceedings there had, and for some reason not here appearing, the district court dismissed the appeal whereupon defendant, as plaintiff in error, sued out this writ of error to review the judgment of the county court. The defendant in error now contends that, by the filing of an appeal bond in the county court, and thus perfecting an appeal to the district court, the defendant corporation waived any...