Charles v. Amos, 10 Colo. 272

10 Colo. 272 | Colo. | 1887

Maoon, C.

Appellant assigns thirteen errors in this case. The second assignment goes to the alleged admission of improper testimony for the plaintiff. The record fails to show that any improper testimony was admitted by the court. All of plaintiff’s testimony was proper, relevant and material, provided the court had jurisdiction of the cause.

The third assignment is based upon the refusal of the court to permit the witness to testify what were Charles’ intentions in leaving Morrison. Charles’ intentions in the premises were immaterial, and, whatever they may have been, they could not affect the case. The evidence was offered for the purpose of showing that Charles was not a non-resident of this state when the attachment was issued; but if one man could be allowed to testify to the intentions of another, instead of being confined to a statement of facts or declarations from which intent may be inferred, this offer of defendant should not have been allowed, because Charles’ intent when he left Morrison could not prove what his intent was when the writ of attachment was issued. His letter to Amos, from Goshen, N. C., dated December 3, 1883, shows beyond dispute that he had given up all expectation of returning to Colorado.

The fifth assignment has no merit; it is: “The court erred in striking out the testimony of L. E. Charles and Charles Lemsky, witnesses, wherein they state that they know Mr. Charles is coming back to Morrison.” Suppose it be admitted that Charles did contemplate returning to Morrison. These witnesses did not pretend to know or say what his object in returning was; they did not even intimate that he meant to reside in that or any other place in Colorado upon, his return. The witness Mrs. Charles says: “I know Mr. Charles is coming back again to Morrison. I was well acquainted with Mr. Charles’ business up to the time he left.” She does not pretend to say he was coming back to reside there; and on cross-examination says her knowledge of this fact is derived from what he told her before he went away and from his letters. Her pretended knowledge was but her conclusion from the declarations of Charles, the defendant, and were not proper testimony. Lemsky’s knowledge is not better founded, and the court did right in striking it out.

The sixth assignment is: “The court erred in rejecting other proper testimony on the part of defendant; ” and upon that it is sufficient to say that the record shows no error of the court in this particular.

The eighth, ninth, tenth, eleventh, twelfth and thirteenth assignments all go to the same point, namely, that upon the evidence the judgment should have been for defendant instead of for the plaintiff. Assuming the jurisdiction of the court, there can be no pretense that defendant was entitled to judgment; upon the whole evidence, there can be no doubt of the fact of his indebtedness to plaintiff, and his letter of December 3d, to Amos, is a clear admission of such indebtedness; the only excuse for not paying it being that “what I once called my wife agreed before more than a dozen witnesses to assume all indebtedness against the shop.” With this agreement Amos had no connection, and by it he was not bound. It was, therefore, no defense to the action, and the court did not err in rendering judgment against defendant upon the evidence.

The first, fourth and seventh assignments challenge the jurisdiction of the justice of the peace to render the judgment appealed from, as well as the jurisdiction of the county court. This objection to the jurisdiction rests upon three grounds: First, that the defendant did not at the commencement of the suit, nor at any time, reside in the township where the suit was commenced; second, that the justice did not cause notice of the suit to be published as required by law; and, third, that the constable did not retain the summons put into his hands for service until the date of the trial of the cause. The first ground has been disposed of by this court in Wagner v. Hallack, 3 Colo. 182, where it is held that the statute in question does not apply to non-resident, debtors. The second and third grounds relied on by appellant have also been before this court, and disposed of adversely to the view advanced by appellant. In Wyatt v. Freeman, 4 Colo. 14, it is held that by filing his appeal bond in the appellate court, appellant enters his appearance therein, and cite with approval Swingley v. Haynes, 22 Ill. 216, and Railroad Co. v. McCutchin, 27 Ill. 11, in which cases it is held that, though the justice had no jurisdiction of the person of the appellant, by appealing and filing his appeal bond he brings himself within the jurisdiction of the appellate court. The Illinois statute, which these cases construe, is substantially, in terms aiid meaning, identical with sections 64 and 65 of our justice and constable act.

There was no error in the proceedings of the county court, and the judgment should be affirmed.

We concur: Stallcup, C.; Rising, 0.

Per Curiam. For the reasons assigned in the foregoing opinion the judgment of the county court is affirmed.

Affirmed.