No. 2397 | Colo. Ct. App. | Apr 15, 1902
Lead Opinion
Suit was against the principal and sureties upon an official bond. Among the sureties was G. G. Symes. • Defendants answered. Thereafter Symes died. This order was made: “At this day comes William M. McGuire, an attorney of record herein, and suggests to the court the death of the defendant, G. G. Symes, and on his motion it is ordered-by the court that the executrix, Sophie F. Symes, be substituted party defendant in place and stead of G. G. Symes, deceased.”
At no time was notice or summons served on the administratrix making her a party to the action. At no time did she in person or by counsel appear therein.
The present action was a proceeding in the district court of Arapahoe county, wherein the above judgment was rendered, to vacate the same; from a judgment dismissing the action plaintiff therein is here on error.
Defendant in error contends:
1. This is not a direct attack upon the judgment assaulted. The contrary is ruled in Wilson v. Hawthorne, 14 Colo. 530" court="Colo." date_filed="1890-04-15" href="https://app.midpage.ai/document/wilson-v-hawthorne-6561958?utm_source=webapp" opinion_id="6561958">14 Colo. 530, 24 Pac. 548.
2. The failure of the complaint herein to allege that a meritorious defense exists to the action in which judgment was rendered, is fatal to its stating a cause of action.
That such averment is not essential is decided in Wilson v. Hawthorne, supra; Keely et al. v. East Side Improvement Co., 16 Colo. App. 365" court="Colo. Ct. App." date_filed="1901-04-15" href="https://app.midpage.ai/document/keely-v-east-side-improvement-co-7835411?utm_source=webapp" opinion_id="7835411">16 Colo. App. 365, 65 Pac. 456, 3 Colo. Dec. 457.
3. Plaintiff in error contends the failure to bring the administratrix into court by notice or process of some character is fatal to the judgment rendered against her.
The question presented is, not whether a judgment against deceased taken after death is void, but whether a judgment taken against his personal representative without acquiring jurisdiction of her person is void. It is immaterial what the rule was at
The code here prescribes the terms upon which the personal representatives may be made a party, that is, by an order made on motion. Such order is void unless made on notice.—Taylor v. Derry, 4 Colo. App. 109" court="Colo. Ct. App." date_filed="1893-09-15" href="https://app.midpage.ai/document/taylor-v-derry-7833003?utm_source=webapp" opinion_id="7833003">4 Colo. App. 109, 35 Pac. 60.
No notice of the order making the administratrix a party having been given, it is void.—Taylor v. Derry, supra.
As the administratrix was never in any manner a party to the action in which the assaulted judgment was rendered the judgment therein against her was void.
Judgment below reversed.
Rehearing
On Rehearing.
Pending an action against G. G. Symes, and after issue joined, he died. Plaintiff in error became hiá administratrix. Thereafter, without her appearing, being noticed or summoned, an order was made continuing the action against her as administratrix, and judgment had against her as such. Was this a valid judgment?
“It is a familiar and universal rule that a judgment rendered by a court having no jurisdiction, of either the parties or the subject-matter, is void and a: mere nullity, and will be so held and treated whenever and for whatever purpose it is sought to be used or relied on as a valid judgment.’’ — Black on Judgments, § 218; see also Smith v. Morrill et al., 12 Colo.
The reason for this rule is the right of opportunity to be heard before interests are adjudged. Such reasoning and rule apply to the present case. By operation of law the administratrix (plaintiff in error) was liable for certain of the alleged obligations of the deceased. For such as were not binding upon the deceased, for such as did not survive she was not liable. When sued upon an alleged liability she had a right to the opportunity of availing herself of the above defenses, or any other defense she might have had before being judicially declared liable, and thereby concluded as to her defenses except those jurisdictional. This right was not accorded her; the court never had jurisdiction of her. In consequence the judgment rendered agáinst her was invalid. This was our conclusion in the original ruling, and as this remains unchanged, the petition for rehearing will be denied. Denied.