Reuss et al. v. W. T. Rawleigh Company, Inc.

No. 14,068. Reuss et al. v. W. T. Rawleigh Company, Inc. (73 P. [2d] 987) Decided May 24, 1937. On rehearing judgment reversed November 15, 1937. Mr. W. David McClain, for plaintiffs in error. Mr. Theodore J. Adams, Mr. Royal C. Rubright, Mr. William W. Gaunt, for defendant in error. En Banc. [MAJORITY — Mr. Chief Justice Burke] Mr. Chief Justice Burke delivered the opinion of the court. We heretofore affirmed this'judgment in department on the sole ground of defective abstract and assignments and on the authority of Zall Jewelry Co. v. Stoddard, 68 Colo. 395, 397, 190 Pac. 506. On petition of plaintiff in error a rehearing was granted and the cause transferred to the court en banc. On further examination and careful consideration of the abstract and assignments, but more particularly of the original bill of exceptions, it clearly appears that no summons was in fact served. The point is that the alleged summons was unsigned, and this is admitted. It therefore had no validity and its service gave no jurisdiction. Steedle v. Woolston, 88 N. J. L. 91, 95 Atl. Rep. 737; Ware v. Mosher, 52 Colo. 318, 320, 121 Pac. 751. The objection being jurisdictional, we have elected to ignore defective abstract and assignment, if such they be, and look to the whole record, as we have repeatedly held may be done in a proper case. Miller v. People, 23 Colo. 95, 97, 46 Pac. 111; Dailey v. Aspen Pub. Co., 46 Colo. 145, 146, 103 Pac. 303; Lombard v. Overland D. & R. Co., 41 Colo. 253, 92 Pac. 695. Deeming this such, the result is inevitable. The former opinion is withdrawn and the judgment reversed.