Shepard v. Adams

This was an action brought in the district court of the United States for the district of Colorado, by Frank Adams, receiver of the Commercial National Bank of Denver, against J. B. Shepard, on a promissory note, dated June 7, 1893, wherein said Shepard promised to pay to the said bank, 30 days after date, the sum of $20,000.

A writ of summons, in the form prescribed by the rule of that court, was sued out against the said defendant on the 24th day of August, 1895, whereby he was required to appear and demur or answer to the complaint filed in said action in said court within 10 days (exclusive of the day of service) after the summons should be served on him, if such summons should be made within the county of Arapahoe; otherwise within 40 days from the day of service.

On August 27, 1895, the deputy marshal made return of said writ as served that day on the defendant at Denver, county of Arapahoe.

Within 10 days after the service of said summons, to wit, on the 4th day of September, 1895, the defendant, by his attorneys, specially appeared, and moved the court to quash the summons for the following reasons:

'First. Said summons is not such a summons as is provided for by the statutes of Colorado. The said summons is made returnable and requires the defendant to appear and answer in this action in this court within ten days from the day of the service of said summons, instead of thirty days, as provided by the statutes of Colorado.

'Second. The copy of said summons served upon said defendant is not certified to as a true copy by the clerk of this honorable court.'

Thereafter, to wit, on the 4th day of January, 1896, the court, after hearing argument of counsel, overruled said motion, and, the defendant electing to stand by said motion, rendered judgment in favor of the plaintiff and against the defendant, according to the prayer of the complaint.

A bill of exceptions was signed, and a writ of error allowed to the supreme court of the United States.

It appears by the bill of exceptions that on March 17, 1877, the general assembly of the state of Colorado passed an act entitled 'An act providing a system of procedure in civil actions in the courts of justice of the state of Colorado,' which act contained the following provisions:

'Civil actions in the district courts and county courts shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought and the issuing of a summons therein; provided, that after the filing of the complaint a defendant in the action may enter his appearance therein, personally or by attorney, which appearance shall be equivalent to personal service of the summons upon him.'

'The time in which the summons shall require the defendant to answer the complaint shall be as follows: 1st. If the defendant is served within the county in which the action is brought, ten days. 2d. If the defendant is served out of the county, but in the district in which the action is brought, twenty days. 3d. For all other cases, forty days.'

The summons in this cause was issued and made returnable under and in pursuance of a general rule of the district court of the United States for the district of Colorado, adopted on October 10, 1877, which is in the following terms:

'Actions at law shall be commenced by filing a complaint with the clerk, upon which a summons shall be issued, directed to the defendant, requiring him to appear and demur or answer to the complaint within ten days from the day of service, if such service shall be made within the county from which the summons was issued, and within forty days from the day of service if such service shall be made elsewhere in the district. Except as provided in these rules and in the laws of the United States, the summons and the pleadings, and proceedings in the action shall be as prescribed in the laws of the state.'

It further appears that the general assembly of the state of Colorado passed an act on April 7, 1887, repealing the above provisions in the act of 1877, and enacting as follows:

'Civil actions shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, or by the service of a summons.

'The complaint must be filed within ten days after the summons is issued, or the action may be dismissed without notice, and in such case the court may, in its discretion, if it shall be of the opinion that the action was vexatiously commenced, tax a reasonable attorney's fee as costs in favor of defendant, to be recovered of plaintiff or his attorney.'

It also appears that the said general assembly, on April 19, 1889, passed an act, since then and now in force, containing the following provision:

'Section thirty-four of an act entitled 'An act to provide a code of procedure in civil actions for courts of record in the state of Colorado, and to repeal all acts inconsistent therewith,' approved April 7, 1887, is hereby amended to read as follows:

'The summons shall state the parties to the action, the state, county and court in which it is brought, and require the defendant to appear and answer the complaint within twenty days fter the service of the summons, if served in the county in which the action is brought; or if served out of such county or by publication, within thirty days after the service of the summons, exclusive of the day of service, or that judgment by default will be taken against him according to the prayer of the complaint, and shall briefly state the sum of money or other relief demanded in the action; but the summons shall not be considered void or erroneous on account of an insufficient statement of the relief demanded, unless the same is manifestly misleading. If a copy of the complaint be not served with the summons, or if the service be made out of the state, ten days additional to the time specified in the summons shall be allowed for appearance and answer, but the form of the summons shall be the same in all cases.'

T. J. O'Donnell, for plaintiff in error.

C. S. Thomas and W. H. Bryant, for defendant in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.