Wilson v. Hawthorne

• Citation: 24 P. 548,14 Colo. 530
• Parties: WILSON et al. v. HAWTHORNE.
• Decision Date: 30 June 1890
• Court: Supreme Court of Colorado

24 P. 548

14 Colo. 530

WILSON et al. v. HAWTHORNE.

Supreme Court of Colorado

June 30, 1890

Appeal from district court, Clear Creek county.

Syllabus by the Court

1. Every material allegation of a complaint or answer, not controverted, must, for the purposes of the action, be taken as true.

2. A judgment rendered without obtaining jurisdiction of the person may be impeached by a proceeding in equity, or by answer to an action, where equitable defenses are allowable.

3. An allegation of merits should be made in a complaint or answer denying the validity of a judgment as an earnest of good faith; but such allegation is not essential or traversable.

4. The rigid rule in common-law action that a joint plea insufficient as to one defendant is insufficient as to all is not applicable to an equitable defense, under the Colorado Code of Procedure. Quoere, whether a judgment rendered against several parties may be maintained against those over whom jurisdiction was regularly obtained, when set aside as to others for want of jurisdiction.

W T. Hughes, for appellants.

ELLIOTT J.

From the abstract of record in this case it appears that the action was begun by appellee as plaintiff in the county court in 1885 to recover the balance due upon a certain other judgment rendered in his favor in the same court in 1878. To the complaint appellants, as defendants, filed an answer containing certain denials, and also a further equitable defense or cross-complaint verified. The cross-complaint is in the nature of a bill in equity to impeach a judgment for want of jurisdiction. Its allegations are affirmative both in form and substance. They are to the effect that the judgment sued upon was rendered by the county court of Clear Creek county upon an appeal from a justice's court; that no summons was served upon Henry Wilson from the justice's court; that he did not appear in that court did not unite in the appeal to the county court, and never appeared in the action, either in person or by attorney, and, further, that the entry of the appearance of Henry Wilson by the county court was unauthorized; that Henry Wilson was not served with process, and did not appear in person in the case at any time; that the attorney for David R. Wilson was without authority to appear for Henry, and in fact appeared for David R. alone, so that the judgment of the county court was void for want of jurisdiction; and that the county court, though duly requested in apt time by motion supported by affidavits to amend the record so as to show that said Henry Wilson was not subject to its jurisdiction, refused so to do. Upon these and other pertinent and amendatory allegations added by leave of the court excusing delay in not sooner seeking relief from the judgment sued upon, defendants demanded 'that the said judgment be vacated and annulled, and that the plaintiff be enjoined from further proceedings thereon.' From the abstract of the record before us it further appears that a demurrer upon general grounds, and also upon the ground that the matters set forth in the cross-complaint were barred by the statute of limitations, was interposed, and sustained by the county court; that thereupon an appeal was taken to the district court of Clear Creek county, in which court the demurrer to the cross-complaint was overruled, and leave and ample time were given to plaintiff to answer the same. After these recitals the abstract of record contains the following statement: 'December 23, 1886, no answer to the cross-complaint having been filed, the cause came on for trial upon the allegations of the cross-complaint and its amendments. After hearing the evidence, consisting of record exemplifications, the court adjudged the cross- complaint and its amendments insufficient, and dismissed the same.' The defendants bring this appeal. No part of the evidence or of the record exemplifications appear in the abstract of record. The only error assigned is that 'the court erred in dismissing the cross-complaint and refusing the relief prayed for.' This appeal is governed by the act of 1885, (Sess. Laws, 350.) Section 16 of said act provides that 'the cause shall be submitted to the supreme court upon the printed abstract of record and amended abstracts, as hereinafter provided, and no transcript of record in writing shall be filed, and no costs shall be taxed therefor except as herein provided.' In construing this section of the statute, this court, in the case of South Boulder Ditch & Reservoir Co. v. Community Ditch & Reservoir Co., 8 Colo. 429, 8 P. 919, said: 'The review of the case is had upon the printed abstracts.' The same rule was announced in Halsey v. Darling, 13 Colo. 1, 21 P. 913. By overruling the demurrer, the district court adjudged the equitable defense or cross-complaint sufficient in law to bar the plaintiff of his action, at least as to one of the defendants. The plaintiff having failed to answer or reply to the cross-complaint, every material allegation thereof must, 'for the purposes of this action, be taken as true.' This rule of pleading is expressly declared by the Code of Civil Procedure of this state, and is sustained by the general current of authority. Code Colo. § 71; Pom. Rem. § 617; Crater v. McCormick, 4 Colo. 196; Tucker v. Parks, 7 Colo. 62, 1 P. 427; Silvey v. Neary, 59 Cal. 97; Fergus v. Tinkham, 38 Ill. 407. It follows from the foregoing that, unless there was fatal error in overruling the demurrer to the cross-complaint,--that is, unless said cross-complaint is wholly insufficient, both in form and substance, for any purpose whatever,--the action of the court in dismissing the same for insufficiency as to both defendants cannot be sustained. It becomes necessary, therefore, to consider whether the equitable defense or cross-complaint as pleaded is fatally defective, or whether it is sufficient in substance as an answer to the plaintiff's action upon the original judgment,...