14 Colo. App. 395 | Colo. Ct. App. | 1900
This is- an ordinary action on a promissory note, dated May 6,1896, dne a year after date with specified interest and payable at the First National Bank. The note was signed F. C. Erdman and Geo. W. Long, Jr. The complaint contains all the allegations requisite to a statement of a cause of action on a promissory note and concludes with a prayer for judgment. The complaint correctly stated the names of the makers of the paper. The summons was signed by one of the attorneys for the plaintiff, and it named Erdman as F. H. Erdman. In no other particular was the summons informal or inaccurate. It conformed to the statute and corresponded with the complaint save as to the initial.
Long demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. According to the argument filed in support of the demurrer and as a basis on which to attack the judgment, it seems to be seriously urged the complaint is defective because it failed to state a demand on the makers. This proposition is easily disposed of by the suggestion of the long established principle
The other point relied on respects the mistake in the summons. Erdman appeared specially and moved to quash the summons, stating that his name was Frederick C. Erdman, relying on the suggestion that he -was not the person named in the summons, and that the summons served on. him, as appeared from his affi davit, contained the name F. H. Erdman in place of F. C. There was a motion for leave to correct the summons by the insertion of the letter C. and of course for a judgment against Erdman who had appeared specially.to attack the proceedings by which he was brought into court. Both motions, the one to quash, and the other to amend, seem to have been heard at the same time and the court denied the motion to quash, gave leave to amend, the summons was thereupon amended and there being no-defense judgment was subsequently entered against both defendants. It is insisted this was error and the court was without authority to amend the notice by which the right person was served and brought into court. The contention is not defensible. I have always been of the personal opinion motions to quash a summons ought not to be entertained when interposed by the one upon whom it was served, if he was the right party to the suit. It is the theory of some codes, and in any judgment they more nearly harmonize with modern procedure, that when the defendant comes into court for any purpose, he is there for all purposes and the court thereby acquires absolute jurisdiction over his person and may proceed, the •papers being amended if they require it, to final judgment against the person who has thus entered its jurisdiction. The rule has not been fully recognized in Colorado, but the supreme court has gone far enough to justify the present procedure. As was stated at the outset this summons was signed by the attorney as permitted by the statute, and thereby F. C.
We discover no error in the record and the judgment will accordingly be affirmed.
Affirmed.