33 Colo. 258 | Colo. | 1905
Petitioner lias applied to liave this court review .the judgment of the court of appeals, rendered in the case of School District No. 38 v. Waters, reported in 20 Colo. App. (77 Pac. 255.) The application is based upon two-grounds: (1) That the court of appeals was without jurisdiction to render the judgment it did; and (2) that the decision is contrary to the prior decisions of this court.
It appears from the opinion of the court of appeals that suit was brought against petitioner
“Because the justice of the peace who assumed to try the above entitled action had no jurisdiction to try the same.”
“Because this court can acquire no more jurisdiction than the justice of the peace had in this action. ’ ’
These additional grounds appear to have been based upon the fact that the school district was not situate in the precinct in which the suit was commenced, before the justice of the peace. This motion was also overruled. Later the cause was tried, the defendant not appearing. Judgment was again rendered against the defendant, from which it appealed to the court of appeals. That tribunal decided that the failure of the school district to raise the question before the justice that the suit was commenced in the wrong precinct, was a waiver of -the right to raise it in the county court.
There is clearly no- merit in the contention of petitioner that the court of appeals was without jurisdiction to render the judgment it did. The proposi
But it is contended that the judgment of the court of appeals in holding that the district had waived its right to raise the question of jurisdiction in the county court, based upon the ground that the suit was commenced in the wrong precinct, is in conflict with the prior decisions of this court on that question. In support of this proposition, our attention is directed to Melvin v. Latshaw, 2 Colo. 81; and Downing v. Florer, 4 Colo. 209. In the first case it appears that the defendant in a suit brought before a justice of the peace moved to dismiss for want of jurisdiction because he did not reside in the county in which the action was brought; that this motion was overruled; that the defendant made no further appearance except to appeal from the judgment which the justice afterwards rendered against him. In the second case the defendant was sued before a justice in a precinct in which he did not reside. He suffered judgment by default. In each case it was held that the defendant by appealing had’ not waived his right to question the jurisdiction of the justice. These cases, however, are entirely different from the one at bar. The effect of the decision of the court of appeals is, that where a .defendant specially appears before a justice of the peace and moves to dismiss for want of jurisdiction of the person, based upon specific grounds, he waives the right
Writ denied and proceedings dismissed.