Jotter v. Marvin Investment Co.

67 Colo. 555

• Court: Supreme Court of Colorado
• Decided: January 15, 1920
• Docket: No. 9008
• Status: Published

Opinions

Mr. Justice White

delivered, the opinion of the court.

The Charles B. Marvin Investment Company brought suit against George W. Jotter to quiet title to certain lands in Yuma county. Jotter answered and sought to quiet the title in himself. Judgment was in favor of the plaintiff and the defendant has brought the -matter here for review. It is conceded that the title of Jotter rests upon a judgment wherein title to the premises had been previously quieted in the Empire Ranch and Cattle Company, and if that judgment is valid the judgment in the instant case is wrong, and should be reversed. The trial court held that the judgment forming the basis of Jotter’s title was void because the affidavit for the publication of summons in the proceeding wherein it was rendered, was made by a person unauthorized under the law to make the same. So much of that affidavit as is necessary to present the question here involved is as follows, to-wit: “Stanley E. Wilmot, being duly sworn, on oath states: that the plaintiff is a corporation duly incorporated under and by virtue of the laws of the State of Colorado; that the executive officers of the said company, including the president, vice-president, secretary and treasurer, reside out of this state; that affiant is a director of the said company and attorney for the transaction of business in the State of Colorado; that none of the officers or directors of the said company reside in this state, except one other member of the board of directors.”

Section 45, Code of Civil Procedure, R. S. 1908, makes provision for the service of summons by publication in proceeding's of this character. It requires, inter alia, that the affidavit for publication be made by the plaintiff in the suit, but provides that if the plaintiff does not reside in the state or is absent therefrom, it “may be made by the plaintiff’s attorney in the action.” At the time the affidavit in question was made the plaintiff in that suit was, by virtue of being a Colorado corporation, a resident of the state and could not depart therefrom. Gibson v. Wagner, 25 Colo. App. 129-136, 136 Pac. 93. Therefore, the code provision for the making of the affidavit by “the plaintiff’s attorney in the action” was not applicable. Besides, no claim is made that Wilmot, the maker of that affidavit, was the “plaintiff’s attorney in the action” in which it was made. It was, therefore, essential to .the validity of the proceedings that the affidavit for publication of summons in that suit- should have been made by the plaintiff. Whether or not this was done is the sole question for determination here.

The spirit and the reason of the law require us to hold that the affidavit in question was the act of the plaintiff. The code provision authorized the plaintiff in the action to mak,e the affidavit, and as the plaintiff therein was a corporation, it Was expressly, though not mentioned by name, authorized to perform that act. This holding is essential in order to make applicable the fundamental rule that corporations are entitled to the benefit of the law equally with individuals. A corporation must of necessity act through its agents. It cannot personally take oath. Therefore, where a law requires an affidavit to be made by the party, such affidavit, where the party is a corporation, may be made by its agent. 2 C. J., § 25, p. 325; 1 Ruling Case Law, p. 762.

We find nothing in the .affidavit, or in the judgment roll of which it forms a part, to overcome the presumption that the court in entering that judgment had jurisdiction. The facts appearing in the affidavit' establish, prima facie, the agency of Wilmot, and his authority to act in the premises, and the court’s finding of due and legal service of summons, must be held conclusive. The judgment is, therefore, reversed and the cause remanded.

Decision en banc.

On rehearing, Mr. Justice Bailey, Mr. Justice Allen and Mr. Chief Justice Garrigues dissent.

Mr. Justice Burke not participating.