Clarke v. Asher

Supreme Court of Colorado

Clarke v. Asher

53 Colo. 313

CourtSupreme Court of Colorado

DecidedApril 15, 1912

DocketNo. 7219

StatusPublished

Cited by10 cases

This text of 53 Colo. 313 (Clarke v. Asher) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clarke v. Asher, 53 Colo. 313 (Colo. 1912).

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Opinion

Mr. Justice Gabbert

delivered the opinion of the court:

The attack made upon the judgment of the county court of Hinsdale county is collateral. Where the court has jurisdiction of the parties and the subject matter in a case, its judgment, unless reversed or annulled in some proper proceeding, is not open to attack or impeachment in any collateral action or proceeding whatever. Trowbridge v. Allen, 48 Colo. 419 (421). From the averments of the complaint it appears without question that the county court of Hinsdale county had jurisdiction of the subject matter of the action instituted by [315]*315the treasurer of Hinsdale county against the plaintiff in the case at bar, and also jurisdiction of his person. Counsel for plaintiff asserts that, in as much as the complaint in the suit instituted in Hinsdale county alleged that for the respective years of 1902 and 1903, the plaintiff, on the first day of May of each of these years, was the owner of certain personal property situated within the county of Hinsdale subject to assessment, that the judgment rendered on this complaint is void, for the reason that under the law in force at that time the owner of personal property could only be assessed for property of that character which he had on hand on the first day of April of each year. This proposition raises the question of the sufficiency of the complaint only. A judgment is not void because of the failure of the complaifit upon which it is based to state a. cause of action. — Camplin v. Jackson, 34 Colo. 447 (452); Venner v. Denver Union Water Co., 40 Colo. 212 (233) ; Steinhauer v. Colmar, 11 Colo. App. 494.

It may be that the complaint in the action brought by the treasurer did not state a cause of action, but the question, under the facts of this case, could only be raised by the defendant therein, the plaintiff in the case here under consideration, by a direct attack. The attack made is collateral.

The judgment of the district court is reversed and the cause remanded for further proceedings in harmony with the views expressed herein. Reversed and Remanded

Mr. Justice Musser and Mr. Justice Hill concur.

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Mr. Justice Gabbert

delivered the opinion of the court:

The attack made upon the judgment of the county court of Hinsdale county is collateral. Where the court has jurisdiction of the parties and the subject matter in a case, its judgment, unless reversed or annulled in some proper proceeding, is not open to attack or impeachment in any collateral action or proceeding whatever. Trowbridge v. Allen, 48 Colo. 419 (421). From the averments of the complaint it appears without question that the county court of Hinsdale county had jurisdiction of the subject matter of the action instituted by [315]*315the treasurer of Hinsdale county against the plaintiff in the case at bar, and also jurisdiction of his person. Counsel for plaintiff asserts that, in as much as the complaint in the suit instituted in Hinsdale county alleged that for the respective years of 1902 and 1903, the plaintiff, on the first day of May of each of these years, was the owner of certain personal property situated within the county of Hinsdale subject to assessment, that the judgment rendered on this complaint is void, for the reason that under the law in force at that time the owner of personal property could only be assessed for property of that character which he had on hand on the first day of April of each year. This proposition raises the question of the sufficiency of the complaint only. A judgment is not void because of the failure of the complaifit upon which it is based to state a. cause of action. — Camplin v. Jackson, 34 Colo. 447 (452); Venner v. Denver Union Water Co., 40 Colo. 212 (233) ; Steinhauer v. Colmar, 11 Colo. App. 494.

It may be that the complaint in the action brought by the treasurer did not state a cause of action, but the question, under the facts of this case, could only be raised by the defendant therein, the plaintiff in the case here under consideration, by a direct attack. The attack made is collateral.

The judgment of the district court is reversed and the cause remanded for further proceedings in harmony with the views expressed herein. Reversed and Remanded

Mr. Justice Musser and Mr. Justice Hill concur.

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53 Colo. 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-asher-colo-1912.

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