Williams v. Board of Com'rs of Routt County

• Decision Date: 05 February 1906
• Citation: 84 P. 1109,37 Colo. 55
• Parties: WILLIAMS et al. v. BOARD OF COM'RS OF ROUTT COUNTY.
• Court: Colorado Supreme Court

84 P. 1109

37 Colo. 55

WILLIAMS et al. v. BOARD OF COM'RS OF ROUTT COUNTY.

Supreme Court of Colorado

February 5, 1906

Appeal from District Court, Routt County; John T. Shumate, Judge.

Action by the board of county commissioners of Routt county against Mrs. R. P. Williams and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Henry T. Sale, for appellants.

C. H Pierce and Jacob R. Harding, for appellees.

MAXWELL J.

The board of county commissioners of Routt county, plaintiff below, filed its complaint against appellants seeking to enjoin them from obstructing a public road alleged to have been duly laid out, established, opened, and maintained by the board for the use of the public over across, and through the premises of appellant Williams. Defendants specifically denied the allegations of the complaint, and by a cross-complaint attacked the legality and validity of the proceedings of the board in attempting to establish and open the road. A general demurrer to the cross-complaint was sustained. The appellants elected to stand by their cross-complaint. Evidence was introduced in support of the allegations of the complaint, and a judgment was rendered by the court perpetually enjoining the defendants, as prayed in the complaint, and for damages. The only errors assigned are based upon the ruling sustaining the demurrer to the cross-complaint.

Counsel for appellee concede that if it should be held that the cross-bill is a direct attack on the proceedings of the board, resulting in the order to establish and open the road, and its allegations are sufficient to avoid the decree, the cross-bill stated a cause of action, and the general demurrer should have been overruled. In Hallack v. Loft, 19 Colo. 74, 83, 34 P. 568, 571, this court said: 'The right to attack a judgment for jurisdictional infirmity, or for fraud, is not confined to the complaint. It extends as well to the answer and replication'--citing cases. And also in Wilson v. Hawthorne, 14 Colo. 530, 533, 24 P. 548, 549, 20 Am.St.Rep. 290: 'Though the authorities are somewhat conflicting upon questions of this kind, we think that the better doctrine is, * * * an action brought upon a judgment pronounced without obtaining jurisdiction of the person of the defendant may be defeated by a proper answer, under a system of procedure allowing equitable defenses, to be interposed in all civil actions'--citing cases. To the same effect, also, are Du Bois v. Clark, 12 Colo.App. 220, 55 P. 750; Smith v. Morrill, 12 Colo.App. 233, 55 P. 824; Keely v. East Side I. Co., 16 Colo.App. 365, 65 P. 456; Crippen v. X. Y. Irr. D. Co., 32 Colo. 447, 76 P. 794. Under the above authorities, the cross-complaint was a direct attack upon the judgment of the board. Section 3934, Mills' Ann. St., provides inter alia: 'It shall be the duty of the board of county commissioners * * * to cause notice to be posted in three of the most public places along the proposed new road, at least five days previous to the day fixed for the view thereof, giving parties in interest notice that at the time fixed by the board of county commissioners the viewers so appointed will meet at the point designated in the petition as the starting point of such road to attend to their duties as viewers.'

Counsel for appellee concede that this statute must be strictly construed, and that actual notice will not take the place of the notice provided by law. The cross-complaint alleged, in substance: That J. B. Male, one of the viewers appointed by the board, filed an affidavit in the office of the county clerk, stating in substance that he had posted notices, a copy of which was attached to his affidavit, at the following places: 'One on L. Long's shop, one on Mrs. R. P Williams' gatepost to her Middle Creek ranch, and one on Henry Myers' fence, each being in a public place along the line of the proposed new road and within the county and state aforesaid.' That no notice was ever posted on the said gatepost of Mrs. R. P. Williams' Middle Creek ranch. That Henry Myers' fence, mentioned in the affidavit, was about a mile or more from the nearest point on the proposed new road. That no other notices than those mentioned in the affidavit were posted. For some undisclosed reason, appellants' counsel in his opening brief and argument pays no attention to the allegation that no notice was posted on the gatepost of Mrs. R. P. Williams' ranch, but in his reply brief he calls our...