1 Colo. App. 303 | Colo. Ct. App. | 1892
By this suit in replevin, under a claim of title and ownership, the plaintiff in error endeavored to recover from the defendant, Hallicy, the possession or the value of a certain stock of goods. The suit was brought in April, 1889, and the defendant Hallicy appeared and answered on the 19th of April, following. The answer was in denial, and was demurred to by the plaintiff. No further action seems to have been taken in the suit by either party until Kiowa county was set off from Bent, as an independent organization. By the terms of the act, (Session Laws 1889, p. 223,) all suits pending in the county court of Bent county, where the cause of action arose within the territory set off, or where the defendant resided in that territory at the time of the division, were to be transferred to Kiowa county. After the passage of the act, and in October of that year, defendant, by his attorney, filed a motion to transfer this action to the county court of Kiowa county. It is not easy to determine the basis of the court’s action upon that motion. It may be premised here for the purposes of this decision, that according to the stipulation of counsel and the certificate of the judge, the record which is sent up is a complete transcript of all the record in the case and contains copies of all the papers filed. There was no showing as to the residence of the defendant, or as to the locality in which the cause of action arose, but the order was made and the cause transferred to that county. Upon the arrival of the case within that jurisdiction, and upon the 18th day
The filing of the demurrer raised an issue of law, which in the regular and ordinary course of proceedings must of necessity have been determined prior to the trial and rendition of judgment. There are but two wajrs in which that issue could be disposed of; first, either by the filing of the amendment to the answer, which ispo facto would dispose- of it, or, second, by the entry of an order of the court in the premises, which would be a judicial determination of the issue. So' far as we know, the exact scope of section 73 of the Code of 1887, has never been settled by á decision of the supreme court. The case which more nearly decides it than any other is Mallan v. Higenbotham et al., 10 Colo. 264.
The question presented then is, may the defendant amend an answer which has been demurred to as a matter of course, and without the entry of an order permitting it. We are of the opinion that this right exists under that section, subject only to the service of the notice and a copy, as the statute plainly provides. The showing that the attorney of record had left the state, and the non-residence of the plaintiffs, in no manner releases the defendant from the duty of giving the statutory notice. It is needless to refer to the power conferred upon the court by section 372 of the Code, since this power is only a judicial one, and the rights of the party to the suit are to be ascertained by the provisions of section 380, .under which the duty is cast upon the defendant to serve notice upon the clerk in case of the non-residence of the plaintiff, and the absence of his attorney from the state. Under these circumstances, since the amendment was filed on the 18th of November, and the cause was tried oii the same day, it cannot be said that the plaintiff had his day in court, and the sentence of the court was pronounced without giving him an opportunity to be heard. Yentzer v. Thayer et al., 10 Colo. 63.
The same difficulty arises if it be adjudged that the defendant was without power to confess the demurrer and file his amendment, because under those circumstances an order of the court was essential to eliminate the issue of law before a new issue of fact could be presented by an amendment to the
No such order was ever entered, and the issue raised by the demurrer was never disposed of by the court. The trial was had under circumstances which practically denied a hearing to the defeated party, and the entry of judgment against him under such circumstances cannot be sustained.
For these reasons this case must be reversed, with directions to the court below to set aside the judgment and permit the plaintiff to reply to the amended answer which has been filed, and for such other proceedings as may be necessary under the law as it is here declared.
Reversed.