53 Colo. 337 | Colo. | 1912
delivered the opinion of the court:
1. This action was brought by The Pawnee Cattle Company against T. E. and H. E. Munson, to quiet title to a 160. acre tract of land in Logan county, of which it is alleged plaintiff is the owner in fee simple, in possession, and defendants claim an adverse interest therein. The title of both parties originates in the following manner with The Municipal Debenture Company, a foreign corporation which owned the land. Gillett, who owned several hundred tax deeds, brought an action in Logan county against 67 defendants, including the Debenture Company, to quiet his tax titles. The land in controversy was not involved in the Gillett action, but it was levied upon and sold on execution, to pay the costs of that suit, and about April 15, 1903, the sheriff gave a deed to it; which is the basis of The Pawnee Cattle Company’s title. October 25, 1907, the Debenture Company deeded the same land to-Ryan; which is the source of defendants’ title. ' The -question is, which one of these titles is paramount ? This is a collateral attack, and if the court had jurisdiction in the Gillett action, the title by the sheriff’s deed through the Debenture Company is the better; or, stated in another way, the title of the defendants is good, unless it was taken out of the Debenture Company by the sheriff’s deed. It is claimed by appellants that an inspection of the judgment roll in the Gillett action, introduced in this case by appellee, shows that the Gillett judgment, which is the basis of the sheriff’s deed, is void. That case went by default without any appearance by the Debenture Company, and the whole question, on collateral attack in this action, is whether an inspection of the judgment roll in that action shows the court pronounced judgment without having acquired jurisdiction over the Debenture Company. This de
“State of Colorado, county of Logan, ss. I do hereby certify that I have duly served the within summons in the within stated action by personally delivering a true copy of said summons to the within named defendants on the dates hereinafter mentioned as follows, to-wit: H. H. Page, agent and representative of The Municipal Debenture Co., a foreign corporation, at Denver, Arapahoe county, Colo., on July n, A. D. 1898; H. D. Ayres, sheriff of Logan county, Colo.”
2. Section 37 of the code of 1887, provides:
“The summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by any person not a party to the action. When the summons is served by the sheriff, or his deputy, it shall be returned with the certificate of the officer of its service to the clerk or attorney who issued the same. When the summons is served by any other person, it shall be returned as before provided, with the affidavit of such person of its service.”
The summons shall be served by the sheriff of the county where the defendant is found, or it may be served by a person not a party to the action. The Municipal Debenture Company was found in Arapahoe county, but not by the sheriff of that county. The service, assuming, but not deciding that it was proper to malee the service in that county, could be by the sheriff of Arapahoe county, or it could be made by any person not a party to the action. It could not be made in Arapahoe county by the sheriff of Logan county, acting as such. When the sheriff of Logan county went to Arapahoe county to find the defendant and serve the summons, he ceased to act as an offi-. cer, and was acting as any other person not a party to the action. The service was not by a sheriff or by his deputy. The section further provides,/ that when the service is by the officer, he shall return the summons with his certificate of service. If the service is by any other person, it shall be returned with an affidavit of its service. This summons has no such return. It
Reversed with directions to the lower court to enter a judgment in accordance with this opinion.
Reversed.