13 Colo. App. 444 | Colo. Ct. App. | 1899
This suit sounding in damages was begun on the 14th of August, 1897, by the service of the summons and complaint on the defendant. Thereafter and within the statutory period for the filing of the answer, the defendant filed a motion and affidavit asking that the plaintiff be compelled to file a cost bond, alleging her inability to pay costs and the danger to the officers as to their fees. Thereafter, and on the 18th of September while this motion was pending and before its determination or the tender of an issue, the plaintiff filed a motion praying a default and judgment against the defendant. October 5, thereafter, these two motions for a cost bond and for a default judgment came on for hearing. The motion for costs in the natural order of events seems to have been first heard and was sústained by the court who ordered the plaintiff to file a bond within ten days in the sum of $200, to provide for the costs in the suit. The plaintiff made no objection to the amount of the bond nor did she make any showing as a basis for its reduction, nor any application to sue in forma pauperis or otherwise than by objection and exception complain of the court’s action. At the same time the court, both counsel being present, made an order fixing the time within which the defendant should file an answer which was under our decisions instanter, being an order that
There are but two substantial questions presented in the briefs and only two which were argued at the oral submission of the cause. The first relates to the force and effect of section 168 of the code which in general provides that in an action like the present, if no answer, demurrer or motion has been filed within the time specified in the summons, or such further time as may have been granted, the clerk or judge shall enter the default of the defendant. It is the contention of counsel for the plaintiff in error that she had an absolute right to have the default of the defendant entered because of a failure to answer notwithstanding this motion for a cost bond had within the proper time been filed. With this position we are wholly unable to concur. The only practical question is whether the filing of a motion for a cost bond preserved the defendant’s rights to answer and prevented the plaintiff from taking a default against him. We see no escape from this conclusion. The language of the code is exceedingly broad and permits the defendant to save his rights and prevent a default from being entered against him, if he file an answer, demurrer or a motion. We are unable to follow counsel to his conclusion that the motion for which this act provides must be a motion which in some manner attacks the plaintiff’s cause of action or her complaint or the proceedings by which her suit is instituted. It is his theory that the only construction of the code provision is that it must be a motion of such character in order to stay the plaintiff’s hands and prevent her from taking her default. ' In support of his position' he cites decisions from other states, but the statutes of those states as we read them are wholly different from our own and the decisions quoted are therefore entirely inapplicable. The language of our code is simply “ a motion.” Without judicial legislation we do not see how we can legit
We do not appreciate the distinction which counsel attempts to draw, but believe these eases entirely applicable and wholly decisive of the present inquiry.
We are unable to discover that the plaintiff has been harmed by the proceeding, or that any steps were taken which were not warranted by the law or by the code, and we must affirm the judgment which is accordingly done.
Affirmed.