17 Colo. 70 | Colo. | 1891
Lead Opinion
delivered the opinion .of the court.
The assignments of error are to the effect, first, that the county court erred in rendering judgment without acquiring jurisdiction over the defendant Amy A. Seeley; second, that the court erred in entering default on the 30th day and in rendering final decree on. the 49th day after the last publication of the summons.
By the Code of 1887, sections 41 and 44, it is provided that when the service of summons is by publication it shall be deemed complete at the expiration of ten days from the date of the last publication ; and that from the time of the service of the summons the court shall be deemed to have acquired jurisdiction and to have control of all subsequent proceedings. The default and judgment not -having been rendered until more than ten days after the last publication of the summons, the.objection that the court acted without ac
It appears by the supplemental record that between five and six months after the rendition of final judgment the defendant Amy A. Seeley made application in writing to the county court to be relieved from the decree of divorce. She asked that the decree might be set aside and that she might be allowed to defend. The plaintiff first, and after his decease his representatives, under a rule of court, filed answers to the petition of defendant, and the defendant in turn filed replications to said answers. On the part of the defendant Amy, it was alleged that she had not been served with summons and had not appeared in the action. By the answers thereto it was alleged that the summons was duly served upon said defendant by delivering to her a true copy thereof more than sixty days before the final decree was rendered, and that upon receiving said copy she admitted such service in writing. Thus a formal, material and substantial issue relating to the service of the summons was framed, tried and detérmiñed in the action.
By the allegations and issue thus framed and submitted the proceeding on the part of defendant was in the nature of an action to impeach and set aside a judgment for want of service of summons; on the other side it was in the nature of a proceeding to amend the record in the action so that the same might show that there had been valid and sufficient service of summons duly made upon defendant sufficient in form, time and substance to meet the requirements of the statute and sustain the judgment theretofore rendered. An extraordinary proceeding from a common law stand-point, perhaps, but not. altogether unprecedented under the reformed
The effect of the trial was not to determine the merits of the original action, but to determine whether or not the defendant had been duly served with summons for such a period of time as to preclude her from contending that she had not had her day in court in the action before judgment. The determination of the issue by the court was general. It was adverse to the application of the defendant to vacate the final judgment. The record does not disclose that any special findings either upon the law or the facts were requested by either party. Neither the evidence nor the rulings of the court during the trial have been brought here by bill of exceptions. Whether or not the court erred in reaching its conclusion cannot, therefore, be reviewed by this court. The presumption is that it did not err.
The only ground under the issues presented upon which the trial court could have properly denied the defendant’s application was that she had received valid and sufficient service of summons, and that by her own laches she had allowed the judgment to be rendered against her. In the absence of a bill of exceptions showing the contrary, we must presume that the court was governed bj' proper views of the law in arriving at its conclusion, and that the conclusion was fully warranted by the evidence. Knox v. McFerran, 4 Colo. 348 ; Rollins v. Board of Commissioners, 15 Colo. 103. The result of the trial, therefore, amounted to a judicial determination of record in the cause that the defendant had been duly served with summons the requisite length of time before default and judgment were entered. A formal amendment of the record to that effect would have been proper and according to the better practice (1 Black on Judgts. 125, 126) ; but under the circumstances of this case we do not
In order to consider and give effect to the matters contained in the supplemental record it is not necessary to invoke the act of 1889, Session Laws, p. 78, nor to discard the doctrine announced in Polk v. Butterfield, 9 Colo. 325, and followed by Cross v. Moffatt and Hughes v. Felton, in 11 Colo. Neither of those cases refer to proceedings to amend the original record. They merely declare that under the then existing practice, error could not be assigned upon the decision of the lower court refusing to vacate a judgment previously rendered. The doctrine of those cases cannot be extended to include proceedings to amend the original record so as to make the same conform to the facts as they really existed at the time of the entry of final judgment. In numerous instances this court has expressly recognized and permitted amendments of the records of inferior courts by proceedings subsequent to final judgment, and in some cases such amendments have controlled the decision of the case in this court.
In Knox v. McFerran, supra, the following language is strikingly analogous to the view we have taken of the present case:
“ This cause was continued to give the appellee an opportunity to apply to the court below to amend the bill of exceptions. This accords with approved practice. Appellant’s counsel was duly notified of the motion to amend and appeared in response to the notice. * * * The appellants failed to except to the allowance of the amendment. Had appellants made it appear .to this court by a bill of exceptions that the lower court had no sufficient means of information by which to make the amendment, the motion to strike out
Amendments by proceedings subsequent to final judgment have not been restricted to amendments of the bill of exceptions. In Calvert v. Calvert, 15 Colo. 390, a decree rendered in the county court upon service of summons by publication was finally reviewed and affirmed upon three separate transcripts. The errors assigned relating to defects in the record pertaining to constructive service, were held to be cured by proceedings subsequent to final judqment, as shown by the additional and supplemental transcripts.
In the present case no error is assigned upon the proceedings subsequent to final judgment. Those proceedings remain of record unchallenged and in full force and effect. The defendant below certainly cannot now be permitted to ignore them. She might, perhaps, have sued out a writ of error to reverse the original judgment as prematurely rendered without first appearing below to have the same set aside. But having voluntarily appeared and participated in the subsequent proceedings she must be held bound by the issue thus framed and determined.
Counsel suggest that Mrs. Amy Seeley was greatly wronged by her husband, and that by upholding the decree of divorce she will be subjected to still greater hardship. Of this suggestion we have no adequate means of judging since the record does not contain the evidence taken either in the original cause or on the subsequent proceedings. The result of the trial is all- we can consider. This shows that Mrs. Seeley received a copy of the summons in the divorce suit a long time before any default or decree was rendered against her. This she does not deny. She says she was misled as to the import and meaning of the summons by the misrepresentations -of her husband. What those misrepresentations were does not appear. Whatever they may have been she should not have trusted- to them. While husband and wife are liv
, The decree of divorce cannot property be disturbed; it is accordingly affirmed.
Affirmed.
Rehearing
It is insisted that the record shows affirmatively that Mrs. Seeley received the copy of the summons in California since her allegation to that effect is not denied. In her original affidavit to set aside the decree she did not state that she received a copy of the summons out' of the state, or at all. In her reply she admits that a copy was mailed to her in California. If she had alleged this in her original affidavit, and such allegation had not been controverted by plaintiff, it would, as counsel contend, according to the rules of pleading in civil actions, have to be taken as true. But new matter alleged in a reply is to be deemed controverted. Code, sec. 71.
Conceding, however, that the summons was delivered to defendant in California, such fact is not conclusive against the validity of the service. The general rule, undoubtedly is, that the delivery of a summons or copy thereof to a defendant without the state is not of itself valid personal service. 1 Black on Judgts., sec. 288; 2 Id., sections 837, 905. But the validity of the service in this case does not depend upon the mere delivery of the summons. It was not alone the delivery of the summons to defendant, but her voluntary return thereof to plaintiff in this state with her written acknowledgment thereon which constituted, in the language of the code, “ valid and sufficient service.” Thus she made the written admission which gave the court jurisdiction over her person, and which made it incumbent upon her to answer within the statutory time from March 6, 1888, or suffer judgment to be taken against her. Code, secs. 40, 43. In the absence of fraud or other equitable consideration of which no evidence is preserved in this record, we must hold the service to have been sufficient.
It appears by the record that the copies of the summons sent to defendant and by her acknowledged and returned as above stated, were duly proved and filed in the cause, and
Counsel insist that the court shall decide the legal question “ whether a default entered April 20,1888, upon service out of the state on March 6,1888, where no copy of the complaint has been served, is or is not valid.”
As we have already said, the record does not present a case of service without the state in the ordinary acceptation of the term, but a case of voluntary admission of service by defendant and by her voluntarily returned to the plaintiff in this state.
As an abstract proposition it is unquestionably true, that if a copy of the complaint be not served with the summons the defendant is entitled to ten days additional to the twenty or forty days otherwise allowed for appearance and answer. Code, sec. 84. But the code does not provide that a copy of the complaint shall be served, nor if served, how the ser
Petition denied.