Richardson v. Wortman

34 Colo. 374

• Court: Supreme Court of Colorado
• Decided: September 15, 1905
• Docket: No. 4627
• Status: Published

Opinion

Mr. Justice Goddard

delivered the opinion of the court.

It is contended by counsel for plaintiff in error that the issuance and return of an alias summons showing that the same could not be personally served on the defendant at the time of the issuance of the order for publication was an essential step and a condition precedent, and that the delay of five months between the return of the first summons and the making of the order of publication was fatal to' the validity of the order, and rendered the service of the summons void, notwithstanding the affidavit of plaintiff filed at the time the order was made established the fact that the defendant had been a nonresident of the state ever since the commencement of the action, and' still resided out of the state, and whose post office address was Springville, in the county of Erie, state of New York.

In the case of Eagle Gold Mining Co. v. Bryarly, 28 Colo. 262, wherein several actions were consolidated, the procedure for the obtaining of the order of publication was very similar to the steps taken here. There was a delay of more than four months between the return of the sheriff on the summons there issued and the final order upon which publication of summons was made owing to a successful attempt on the part of the defendant to quash the first publication, as in this case. The orders were made and publication of summons had upon new affidavits filed at the time the order was obtained. Mr. Justice Steele, who delivered the opinion of the court, after quoting section 41 of the code, which controls in cases of service of summons by publication, says:

“It is apparent from an examination of this statute that the return of the sheriff was not intended by the legislature to be made the basis of the order for publication, because the service is only to be attempted in the county where the suit is brought, and the information that the defendant is a nonresident is contained only in the affidavit made by the plaintiff. ’ ’

The court there held that' the several steps having been taken in the order required by the code, the delay between the return of the sheriff and the making of the order of publication was not fatal to the service of the process, and sustained the action of the court below in entertaining jurisdiction of the case.

There is no substantial difference between the facts in that case and those disclosed in the record before us, and under the rule there announced the court below rightly entertained jurisdiction of this action, and its judgment is therefore affirmed.

Affirmed.

Chief Justice Gabbert and Mr. Justice Bailey concur.