Creighton v. Kerr

ERROR to the Supreme Court of the Territory of Colorado; the case being thus:

The statutes of Colorado relating to attachments enact:

'SECTION 54. Whenever a plaintiff in any civil action pending in any court of record in this Territory shall file in the office of the clerk of the court wherein such cause is pending, an affidavit showing that the defendant resides out of this Territory, it shall be the duty of the clerk to cause a notice to be published in some newspaper, published in the county in which such cause is pending, for four successive weeks prior to the next term of the court, which notice shall set forth and state the title to the court in which such action is pending, the nature of the action, and, if such action shall be brought to recover money, the amount claimed by the plaintiff, the names of the parties, and the time when, and the place where, the next term of court in which such action is pending will be held, and that if the defendants shall fail to appear at the term of court, and plead or demur, judgment shall be entered by default.

'SECTION 55. It shall be the duty of the plaintiff, in all cases in which such notice shall be published, in addition to such publication,. . . if upon diligent inquiry the place where the defendant may then be found can be ascertained, to send to such defendant, and to each of them, by mail, a true copy of such notice, properly addressed to such defendant, at the post-office nearest to the place where such defendant may be found, at least thirty days prior to the term of court mentioned in such notice.'

This statute being in force, Kerr and another, in May, 1870, sued Creighton in the District Court for Arapahoe County, in Colorado Territory, in attachment. They filed an affidavit, alleging Creighton's non-residence, and that he owed them $5563.

The sheriff returned that he had attached certain shares in the Colorado National Bank, belonging to Creighton, who was not found.

The plaintiffs then filed their declaration, claiming $8000.

No notice of these proceedings was published as required by the statutes.

Subsequently an entry was made in the court as follows:

'Now come the said plaintiffs, by Alfred Sayre, Esq., their attorney, and the said defendant, by Messrs. Charles and Elbert, his attorneys, also comes, and thereupon, on motion of said plaintiff's attorney, the said defendant was ruled to plead ten days from this date.'

On the 19th of October the following:

'And now on this day come Messrs. Charles and Elbert and withdraw their appearance as attorneys for the said defendant, without prejudice to the plaintiff.'

On the 27th of October a judgment was entered, reciting the appearance, its withdrawal 'by leave of the court and without prejudice to said plaintiffs;' and the defendant's failure to plead according to the rule. Damages were assessed by a jury at $12,244. A remittitur was entered for $4244, and judgment taken for $8000. The Supreme Court affirmed this judgment, and the defendant brought the case here.

Mr. J. M. Woolworth, for the plaintiff in error:

I. If we lay out of view the appearance which Charles and Elbert entered for Creighton, it is obvious that this judgment cannot be sustained for a moment, because—

1. No notice of the proceedings was published, nor mailed to the defendant, both of which things the statute render necessary. If neglected, a judgment may not be collaterally avoided, but on error it must be reversed.

2. The writ of attachment by which the suit was brought is for only $5563, and the affidavit on which the writ is issued alleged only that sum to be due. It was not competent for the court to render a judgment for more than was specified in the writ.

II. The fact that Mr. Creighton appeared generally in the action, does not affect the case.

Had the withdrawal of the appearance been general, and unqualified by the words 'without prejudice to the plaintiff,' the case would have stood as if no appearance had been entered. The words 'without prejudice,' do not retain to the plaintiff the advantage of the appearance. To give to them that effect would make of no effect the withdrawal. The utmost meaning that can be attributed to them is, that the progress of the cause, and all rights of the plaintiff not resting on the appearance, should remain unaffected by the withdrawal.

Mr. R. T. Merrick, contra.

Mr. Justice HUNT delivered the opinion of the court.