Thomas v. Colorado Nat. Bank

11 Colo. 511 | Colo. | 1888

Stallcup, C.

It is assigned and argued here that tne court erred in denying the motion to quash the summons, and in entertaining jurisdiction of the case,.-because the said summons was not issued to the county, nor to the sheriff of the county, in which the defendant was served; because it does not appear from the summons, nor the return thereon, that C. W. Shores was, at the-time the same purports to have been served, the duly-qualified sheriff of Gunnison county; because the contract was made payable in Gunnison county, and that the-defendant was resident there; and that the court erred in giving and entering judgment without evidence. Section 34 of our Code of Civil Procedure (1883) provides that the summons shall be issued under the seal of the court, and directed to the defendant. Section 36 provides that the time in which the summons shall require the defendant to answer the complaint shall be as follows: (1)' If the defendant is served within the county in which the action is brought, ten days; (2) if the defendant is served out of the county, but in the district in which the action is brought, twenty days; (3) for all other cases, forty days. Section 39 provides, inter alia, that the summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, and that it shall be returned, with the certificate of the officer of its service, to the office of the clerk from which the summons issued; and section 47 provides that such certificate shall be proof of service. The service of the summons appears to be in accord with these provisions. Section 28 (24) provides that, “In all other cases, the action shall be tried in the county in which the defendants or any of them may reside, or where the plaintiff resides. * * * Actions upon contracts may be tried in the county in which the contract was to be performed; actions upon notes or bills of exchange, in the county where the same are made payable.” This section has been construed by this court in the case of Law v. Brinker, 6 Colo. 556, to the effect that, in actions upon notes or bills of exchange, the plaintiff may bring the same in the county of his residence. We conclude that the appellee, who was plaintiff below, had the right to bring this action in the said county court of Arapahoe county, and that the said court accordingly had jurisdiction thereof. The appellant having elected to stand by his assertion that the court was without jurisdiction in the premises, to which question his appearance was specially limited, and having declined to plead to the complaint, the court was warranted in proceeding with the case the same as if there had never been any appearance for appellant. Graham v. Spencer, 14 Fed. Rep. 603, 606, 607. The appellant was in default, and the complaint stood confessed. The judgment given and entered being for a liquidated amount, ascertainable from the terms of the contract set forth, and in accord with the terms thereof as set forth in the complaint, and stated in the summons, was properly given and entered without further or different evidence. Secs. 37, 149, Code 1883. The judgment should be affirmed.

Rising and De France, CC., concur.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment of the court below is affirmed.

Affirmed.