The New York and Brooklyn Mining Company v. Gill

The New York and Brooklyn Mining Company v. Gill. Errors in the service of summons by publication may be waived by the appearance and answer of defendant to the merits. Appeal from District Court of Summit County. The grounds of the motion to quash the service in the court below were: “First. For the reason, that the affidavit upon which said order was made is not nor was not sufficient to authorize the clerk to make said order of publication. “ Second. That said order is not in accordance with sections 41 and 42 of the Code of Civil Procedure of the state of Colorado. “ Third. That from said order it does not appear that the same was signed or issued either by the clerk of the court or any of his deputies, or under the seal of this court.” Messrs. Abbett and Bums and Mr. M. B. Carpenter, for appellant. Messrs. Mtillahay, Lipscomb and F. M. Harden-brook, for appellee. [MAJORITY — Beck, C. J.] Beck, C. J. The appellant company was defendant below, and by its counsel moved the district court to quash the service of the summons, which was by publication. This motion was denied. The answer of said company was thereupon filed, and a trial of the issues had before a jury, resulting in a verdict and judgment for the appellee, from which judgment the said .company have prosecuted this appeal. All the errors assigned relate to the refusal of the court below to quash the service of the summons. The alleged errors were all waived by the appearance and answer of the defendant company. The judgment is therefore affirmed with costs. Judgment affirmed. Affirmed.