Gibson v. Smith

| Colo. | Jan 15, 1864

Harding, C. J.

At the March term, 1863, of the district court of Arapahoe county, David Smith recovered against the plaintiff in error a judgment for the sum of $509, and costs of suit taxed at $19. A default was taken against said Gribson, and the damages assessed by a jury who returned their verdict for the damages above named, upon which the court rendered judgment. It appears from the record that before default was entered against Gribson, the defendant in the district court, that he had appeared and filed a general demurrer to the plaintiff’s declaration, which was then on file, and upon which no decision of the court had been had.

On the 14th day of April, 1863, a writ of error issued from this court on behalf of GHbson, and this case is before us for our action.

The whole case turns upon the first error which is assigned in plaintiff’s brief and is as follows:

That the said court erred in giving judgment by default against the said Gribson, he having appeared and pleaded to the declaration previous thereto by general demurrer, upon which no decision whatever appears to have been given. 4 Scam. 53, 54.

We think that it is clear, that the district court committed an error in entering judgment by default against the defendant in the court below, when he had appeared to the action and filed his demurrer to the plaintiff’s declaration, and when such demurrer was undisposed of, and in impaneling a jury to assess the damages.

Per curiam.

The judgment is reversed for further proceedings in the district court, with costs, etc.

Reversed.