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IV. CONTENTS OF SUMMONS.
A. In General.
Law reviews. For article, "One Year Review of Civil Procedure and Appeals", see 36 Dicta 5 (1959).
Annotator's note. Since section (c) of this rule is similar to § 36 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.
The summons is a process by which parties are brought into court, so as to give a court jurisdiction over their persons. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).
The purpose of a summons is to notify the defendant that an action has been brought against him, by whom, the place and court in which the same is brought, the relief demanded, and the time within which he must appear and answer in order to escape a judgment by default. Burkhardt v. Haycox, 19 Colo. 339, 35 P. 730 (1894).
The form of a summons is prescribed by law, and whatever that form may be, it must be observed at least substantially. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).
The provisions of this rule concern the essential content of a summons. Susman v. District Court, 160 Colo. 475, 418 P.2d 181 (1966).
Provision of law is mandatory. Where the law expressly directs that process shall be in a specified form and issued in a particular manner, such a provision is mandatory, and a failure on the part of the proper official to comply with the law in that respect will render such process void. Smith v. Aurich, 6 Colo. 388 (1883).
A summons must contain all that is required by this rule whether deemed needful or not. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).
A summons which does not meet the requirements of the law is a nullity. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).
If the summons is void, there is no jurisdiction over the parties. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).
The summons must be prejudicial to be void. It is manifest without argument that a defect in the summons which will be sufficient to constitute it void or erroneous must be of such a character as to mislead the defendant to his prejudice, and to prejudicially affect, or tend to so affect, some substantial right. Rich v. Collins, 12 Colo. App. 511, 56 P. 207 (1898).
There is a wide difference between a total failure and an inaccuracy or incompleteness of a required statement, especially so where the inaccuracy does not prejudicially affect a party nor tend in any manner to his injury. Rich v. Collins, 12 Colo. App. 511, 56 P. 207 (1898).
If all of the material objects are clearly accomplished by the process, although other language be used than that of the rule, it would be unreasonable to say that the defendant might be heard to complain. Kimball v. Castagnio, 8 Colo. 525, 9 P. 488 (1885).
If copy served on defendant is sufficient, deficiencies in certified copy are immaterial. Where a certified copy of a summons obtained from the clerk of the court below, and purporting to have been served on defendant, is deficient, but the copy of the summons certified to the court in the transcript of the record as served on the defendant does not show such deficiency, an objection that the summons served in the action is deficient will not be considered. Tabor v. Goss & Phillips Mfg. Co., 11 Colo. 419, 18 P. 537 (1888).
A reference to the complaint for particulars does not aid a defective summons. Atchison, T. & S. F. R. R. v. Nichols, 8 Colo. 188, 6 P. 512 (1884); Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).
B. Naming of Parties.
Rules make no exception to naming requirement. The rules of civil procedure make no exception in "in rem" actions, as distinguished from "in personam" actions, to the requirement that defendants be named if their names are known or be designated as "unknown" when such is the case. Barker v. District Court, 199 Colo. 416, 609 P.2d 628 (1980).
The words "et al." do not satisfy requirements that parties shall be named. Smith v. Aurich, 6 Colo. 388 (1882).
An abbreviation of person's name may suffice to identify party. Rich v. Collins, 12 Colo. App. 511, 56 P. 207 (1899).
The omission of defendant's middle initial in a summons is immaterial, since in legal contemplation such initial constitutes no part of a person's name. Clark v. National Adjusters, Inc., 140 Colo. 593, 348 P.2d 370 (1959).
Naming of defendants insufficient. The designations, "owner" and "operator", in the caption of the case, without naming them, when those persons were known to the district attorney, are not in compliance with the requirements of the rules of civil procedure that a party defendant shall be named unless his name is unknown. Barker v. District Court, 199 Colo. 416, 609 P.2d 628 (1980).
C. Nature of Action.
Early provision required summons to state "the cause and general nature of the action". Barndollar v. Patton, 5 Colo. 46 (1879) (decided under repealed Civil Code 1887, § 34).
By a subsequent proviso it became no longer necessary. Burkhardt v. Haycox, 19 Colo. 339, 35 P. 730 (1894); Rich v. Collins, 12 Colo. App. 511, 56 P. 207 (1899).
Even under the early provision, statement of nature of action was not necessary if copy of complaint was served. Swem v. Newell, 19 Colo. 397, 35 P. 734 (1894).
D. Relief Demanded.
Summons which fails to comply with the provision of this rule, which provides that it shall briefly state the sum of money or other relief demanded in the action, is fatally defective, and a motion to quash should be sustained. Farris v. Walter, 2 Colo. App. 450, 31 P. 231 (1892).
A summons in a suit for contribution which states that the action is brought to recover judgment for such amount as should be found to be due from each defendant is not vulnerable to a motion to quash on the ground that it does not state the amount of money demanded. Taylor v. Hake, 92 Colo. 330, 20 P.2d 546 (1933).
Prayer for relief can be aided by statements in complaint where copy thereof is served with summons. Sage Inv. Co. v. Haley, 59 Colo. 504, 149 P. 437 (1915).
Under early proviso, reference to this pleading in no way aided a defective description in summons. Atchison, T. & S. F. R. R. v. Nichols, 8 Colo. 188, 6 P. 512 (1884) (decided under repealed Civil Code 1887, § 34).
This rule does not require that a copy of the complaint must be served with the summons. Smith v. Aurich, 6 Colo. 388 (1882); Seeley v. Taylor, 17 Colo. 70, 28 P. 461 (1891), 28 P. 723 (1892).
Summons in an action based on tort for false representations should show that the action is to recover damages for obtaining money from plaintiff by false and fraudulent representations or by deceit. Erisman v. McCarty, 77 Colo. 289, 236 P. 777 (1925).
Action shown to be on contract. A summons stating that the action is for the recovery of money and interest thereon as well as attorney fees, according to the terms of each, shows that the action is on contract. Erisman v. McCarty, 77 Colo. 289, 236 P. 777 (1925).
The phrase, "in consequence of certain acts and doings of said defendants", is too indefinite to be capable of itself of imparting any information whatever, as to what the defendant is called upon to answer, nor can an expression so void of advice be aided by reference to the complaint. Smith v. Aurich, 6 Colo. 388 (1882).
The relief demanded does not limit the plaintiff in respect to the remedy which he may have; the court will disregard the prayer and rely upon the facts alleged and proved as the basis of its remedial action. Nevin v. Lulu & White Silver Mining Co., 10 Colo. 357, 15 P. 611 (1887); Powell v. National Bank, 19 Colo. App. 57, 74 P. 536 (1903).
Principle that clerk must look to summons alone for amount may apply only to entry of judgment. Where there is no imperative reason insofar as service and notice and the entry of default are concerned why the summons should state the sum of money demanded, the contention that the clerk must look to the summons alone for the amount demanded can be applied only to the lawful power of the clerk to enter the judgment, and when the clerk does not enter the judgment, but only enters the default, this contention fails for lack of application. Griffing v. Smith, 26 Colo. App. 220, 142 P. 202 (1914).
V. BY WHOM SERVED.
Law reviews. For article, "Constitutional Law", see 32 Dicta 397 (1955).
Annotator's note. Since section (d) of this rule is similar to § 39 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.
The words "or by any person not a party to the action" are intended to mean any other person competent to make the service, which, of necessity, excludes the attorneys in the case, they being incompetent. Nelson v. Chittenden, 53 Colo. 30, 123 P. 656 (1912).
The service of a summons by a plaintiff in the cause is void, and a judgment entered in the absence of the defendant and upon such service is a nullity. Toenniges v. Drake, 7 Colo. 471, 4 P. 790 (1884).
Service of process by an employee of counsel who is not counsel or associate counsel is proper service and does not violate the provisions of this rule requiring service to be made by any person not a party to the action. People in Interest of T.G., 849 P.2d 843 (Colo. App. 1992)
Server is not required to go outside county in which action is pending. The sheriff, or person not a party to the action, to whom the summons in a civil action is delivered for service is not in his search for the defendant required to go outside the county in which the action brought is pending. The return thereon by such officer or person that defendant cannot after diligent search be found therein constitutes a proper and sufficient basis for publication of summons. Gamewell v. Strumpler, 84 Colo. 459, 271 P. 180 (1928).
The sheriff loses his official character when he passes out of his own county, so that in serving a summons in another county he acts merely as an individual, and such service must be shown by his affidavit. His mere return, unsworn, is no evidence of the service, and judgment rendered upon such return of service, not otherwise shown, is void. Munson v. Pawnee Cattle Co., 53 Colo. 337, 126 P. 275 (1912).
VI. PERSONAL SERVICE IN STATE.
A. In General.
Law reviews. For article, "One Year Review of Civil Procedure and Appeals", see 36 Dicta 5 (1959). For article, "One Year Review of Civil Procedure and Appeals", see 40 Den. L. Ctr. J. 66 (1963). For note, "Service of Process in Colorado: A Proposed Revision of Rule Four", see 41 U. Colo. L. Rev. 569 (1969).
Annotator's note. Since section (e) of this rule is similar to § 40 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.
This rule requires that a "copy" of the summons be served, not a duplicate original. Hocks v. Farmers Union Co-op. Gas & Oil Co., 116 Colo. 282, 180 P.2d 860 (1947).
The rule is satisfied where a transcript of the original summons, bearing the names of the clerk and counsel for the plaintiff in typewriting is served; actual signatures were not necessary. Hocks v. Farmers Union Co-op. Gas & Oil Co., 116 Colo. 282, 180 P.2d 860 (1947).
Voluntary appearance of a party is equivalent to personal service of process. Munson v. Luxford, 95 Colo. 12, 34 P.2d 91 (1935).
In motions to quash the service of process, the plaintiffs in such actions have the burden, after challenge, of establishing by competent evidence all facts essential to jurisdiction. Harvel v. District Court, 166 Colo. 520, 444 P.2d 629 (1968).
Clear and convincing proof by defendant is required. If the return on a summons is in proper form and shows service in accordance with the rule, the burden is upon defendant to overthrow the return by clear and convincing proof. Gibbs v. Ison, 76 Colo. 240, 230 P. 784 (1924).
Mere failure to obtain proper service does not warrant dismissal of the cause of action. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).
A cause of action filed may remain so indefinitely pending service of process upon the parties. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958).
Counsel impliedly authorized to accept service of process. Where an attorney is hired to commence a lawsuit, he is authorized to accept service of process in a closely related judicial proceeding. Southerlin v. Automotive Elec. Corp., 773 P.2d 599 (Colo. App. 1988).
B. Upon Natural Persons.
Law reviews. For article, "In Re: The Mourners", see 6 Dicta 7 (April 1929).
This rule requires that the copy of the summons and complaint be "delivered" to the proper person. Martin v. District Court, 150 Colo. 577, 375 P.2d 105 (1962).
Clearly, by its own terms, the rule does not require that this "delivery" be accompanied by a reading aloud of the documents so served, or by explaining what they are, or by verbally advising the person sought to be served as to what he or she should do with the papers. Martin v. District Court, 150 Colo. 577, 375 P.2d 105 (1962).
The term "usual place of abode" has generally been construed to mean the place where that person is actually living at the time service is attempted. Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967); Security State Bank v. Weingardt, 42 Colo. App. 219, 597 P.2d 1045 (1979).
It is not synonymous with "domicile". Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967); Security State Bank v. Weingardt, 42 Colo. App. 219, 597 P.2d 1045 (1979).
Upon one's induction into the armed forces, his parent's home ceases to be his place of abode, and it does not matter in this regard that some of his clothing and personal belongings remain there or that he intends to return to his mother's home, wherever it may be, as soon as his military service is terminated. While filial love binds him to his parents wherever they may be, and their home is his for lack of another, it is no longer his "actual place of abode" within the intendment of the rule. Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967).
The term "family" includes husband's adult daughter who was visiting him at the time of service. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).
Service of summons upon an infant over the age of 14 years, but not upon the guardian, no guardian "ad litem" being appointed, but the record reciting that the infant defendant appeared by his next friend as well as by attorney was sufficient service and the appearance was authorized. Filmore v. Russell, 6 Colo. 171 (1881).
C. Upon Unincorporated Associations.
Annotator's note. Since section (e)(4) of this rule is similar to that section of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.
The general rule at common law was that where the obligation was joint only, all the joint obligors must be made parties defendant and must be sued jointly. Sargeant v. Grimes, 70 F.2d 121 (10th Cir.), cert. denied, 293 U.S. 568, 55 S. Ct. 79, 79 L.Ed. 667 (1934).
The purpose of this rule is to change the common-law rule and provide a procedure whereby a partnership could be sued upon a partnership obligation, service made upon one or more but not all of the partners, and a judgment rendered binding the partnership and its property as well as the individual property of the partners served as partners. Sargeant v. Grimes, 70 F.2d 121 (10th Cir.), cert. denied, 293 U.S. 568, 55 S. Ct. 79, 79 L.Ed. 667 (1934).
This rule only provides a method of suing a partnership in addition to the remedy already existing. Peabody v. Oleson, 15 Colo. App. 346, 62 P. 234 (1900).
This rule is cumulative merely and does not affect the right to sue all the members of a firm by their several individual names and obtain a joint judgment against them as partners. Peabody v. Oleson, 15 Colo. App. 346, 62 P. 234 (1900).
It makes the service of summons upon one partner sufficient to bring the partnership into court and bind its property by the judgment. Peabody v. Oleson, 15 Colo. App. 346, 62 P. 234 (1900).
Service of summons includes serving member of family over 18 at residence. Service of summons upon a member of a partnership by leaving a copy of the summons and complaint at his usual place of residence with a member of his family over 15 (now 18) years of age is sufficient service on a partnership under this rule. Barnes v. Colorado Springs & C. C. D. Ry., 42 Colo. 461, 94 P. 570 (1908).
No personal judgment can be obtained against the partners not served; as to them, the judgment rendered can bind only their interests in the partnership property. The judgment should be against the partnership, and in a proper manner, the individual property of the member or members served might be reached for the purpose of satisfying it. Peabody v. Oleson, 15 Colo. App. 346, 62 P. 234 (1900); Ellsberry v. Block, 28 Colo. 477, 65 P. 629 (1901); Blythe v. Cordingly, 20 Colo. App. 508, 80 P. 495 (1905).
A judgment against a partnership binds the joint property of the associates and the separate property of members duly served with process. Denver Nat'l Bank v. Grimes, 97 Colo. 158, 47 P.2d 862 (1935).
Where in an action upon a partnership debt only one of two partners was served with summons and a judgment was entered against the individual partner served, but no judgment was entered against the partnership and the other partner was afterwards brought in by "scire facias" and a judgment was entered against said partner as for an individual debt, then, in the absence of a judgment against the firm, it was error to render judgment against the other partner for the individual debt. Ellsberry v. Block, 28 Colo. 477, 65 P. 629 (1901).
A judgment on copartnership promissory notes merged the notes into the judgment, although only one of the partners was served with summons or appeared in the action, and suit could not thereafter be maintained on the notes against the partners not served. Blythe v. Cordingly, 20 Colo. App. 508, 80 P. 495 (1905).
Any member being served with summons has notice that he may appear in the case and set up any defense to the partnership liability or to his liability as a partner. Denver Nat'l Bank v. Grimes, 97 Colo. 158, 47 P.2d 862 (1935); Sargeant v. Grimes, 70 F.2d 121 (10th Cir.), cert. denied, 293 U.S. 568, 55 S. Ct. 79, 79 L.Ed. 667 (1934).
Court has jurisdiction of a partner who is served for purposes of proceeding to final judgment against him. A judgment having been entered against a partnership and execution thereon having been returned unsatisfied under the provisions of this rule, the court has and continues to have jurisdiction of a partner who had been served with summons for the purpose of proceeding to final judgment against him. Denver Nat'l Bank v. Grimes, 97 Colo. 158, 47 P.2d 862 (1935).
Service upon a partner in a partnership that, in turn, is a partner in a second partnership does not provide notice to the second partnership with sufficient notice of suit against it. Bush v. Winker, 892 P.2d 328 (Colo. App. 1994), aff'd, 907 P.2d 79 (Colo. 1995).
Mere knowledge of the general partner of a partnership, which, in turn, is a partner in a second partnership, that a legal proceeding is pending is not a substitute for service upon the proper entity. Bush v. Winker, 892 P.2d 328 (Colo. App. 1994), aff'd, 907 P.2d 79 (Colo. 1995).
An amendment adding name of another partner is not a change of the cause of action. Where an action is brought against a partnership under the proper partnership name and against one partner who is served with summons, an amendment setting forth the name of another partner and making him a party to the action is not a change of the cause of action by changing the parties to the contract sued on where the partnership named in the amendment and the matter sued on are the same as those named in the original. Adamson v. Bergen, 15 Colo. App. 396, 62 P. 629 (1900).
An action may be maintained against a subordinate or branch organization or association upon a mutual benefit insurance policy where the policy is the obligation of the subordinate or branch association, although the association is under the control of, and the certificate is under the seal of, a supreme lodge. On such a policy an action is properly brought against them under its associate name. Endowment Rank of K. P. v. Powell, 25 Colo. 154, 53 P. 285 (1898).
Ruling denying motion to quash service is appealable order. Where the defendant appears specially and moves to quash the service of summons upon the ground that the service under section (e)(4) of this rule is ineffective and void, then, when the trial court overrules this motion, this ruling denying the defendants' motion to quash the service of summons is an appealable order. Wells Aircraft Parts Co. v. Allan J. Kayser Co., 118 Colo. 197, 194 P.2d 326 (1947).
D. Upon Corporations.
Determining corporate presence within the state is resolved by: (1) Leaving the matter in the sound discretion of a trial court; (2) distinguishing between those cases where merely the internal affairs of a corporation are involved and those cases where the corporation has had transactions with third persons; and (3) considering the equities of the case. Hibbard, Spencer, Bartlett & Co. v. District Court, 138 Colo. 270, 332 P.2d 208 (1958).
The question of what constitutes doing business is a fact to be determined as any other fact. Hibbard, Spencer, Bartlett & Co. v. District Court, 138 Colo. 270, 332 P.2d 208 (1958).
The contracting of a debt is a sufficient doing of business within this state to render a corporation amenable to the courts of this state if jurisdiction could be obtained by service of process as provided in this rule. Colorado Iron-Works v. Sierra Grande Mining Co., 15 Colo. 499, 25 P. 325 (1890).
The Colorado supreme court has not condemned the manner of service of process under this rule as being unfair or as failing to give notice. Focht v. Southwestern Skyways, Inc., 220 F. Supp. 441 (D. Colo. 1963), aff'd, 336 F.2d 603 (10th Cir. 1964).
To bind a corporation, the service of process must be upon the identical agent provided by the rule. Great W. Mining Co. v. Woodmas of Alston Mining Co., 12 Colo. 46, 20 P. 771 (1888).
Subsection (e)(1) requires either personal service or substituted service at the party's usual place of business, with the party's stenographer, bookkeeper, or chief clerk. People in Interest of S.C., 802 P.2d 1101 (Colo. App. 1989).
Service upon the vice-president of a corporation is sufficient even though the return does not show that the president could not be found in the county. Comet Consol. Mining Co. v. Frost, 15 Colo. 310, 25 P. 506 (1890).
Determination of whether a person is a general agent of a corporation for service of process requires an analysis of that person's duties, responsibilities, and authority. Denman v. Great Western Ry. Co., 811 P.2d 415 (Colo. App. 1990).
Delivery of suit papers to corporation's registered agent may be accomplished in the same manner as service on a "natural person" under subsection (e)(1). Thus, delivery of such papers to a registered agent's "stenographer, bookkeeper, or chief clerk" constitutes delivery to that agent. Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986); Swanson v. Precision Sales & Serv., 832 P.2d 1109 (Colo. App. 1992).
Secretary's corporate employer which was the sole shareholder of defendant corporation and whose president was the defendant corporation's registered agent held to be registered agent's "stenographer" under rule authorizing service of process on natural person's stenographer. Swanson v. Precision Sales & Serv., 832 P.2d 1109 (Colo. App. 1992).
Service held proper where secretary was performing service directly for registered agent at the same address that he had listed as defendant's corporation's registered office since it was reasonable to conclude that the secretary would have given registered agent notice of service. Swanson v. Precision Sales & Serv., 832 P.2d 1109 (Colo. App. 1992).
Service of process on defendant was proper where two copies of summons were served on an agent representing both defendants in the case and the summons did not specifically indicate which of the two defendants was being served. A party assumes the risk that errors in transmittal of service of process by its registered agent, who also receives service of process for numerous other entities, will bind the principal. Brown Grain & Livestock, Inc. v. Union Pac. Resource Co., 878 F.2d 157 (Colo. App. 1994).
Nonresident officer not on business may be served in state. Under this rule service is legally sufficient when made on an officer of a corporation whose residence is in another state and who is at the time of service temporarily in this state on business not connected with the corporation; the fact that such officer invited such service would be pertinent in determining the validity thereof. Venner v. Denver Union Water Co., 40 Colo. 212, 90 P. 623 (1907).
Service may properly be made upon agent of receivers who have displaced ordinary officers. The receivers of a foreign corporation, who by their appointment as such displace the ordinary officers of a corporation, are to be treated as foreign receivers, and if the return of the sheriff shows a service that would have been sufficient upon the corporation under its ordinary management, it must be equally sufficient if made upon an agent of the receivers when the affairs of the corporation are under the management of the latter. Ganebin v. Phelan, 5 Colo. 83 (1879).
Under this rule, service is proper upon the agent of a foreign corporation if made within the state. White-Rodgers Co. v. District Court, 160 Colo. 491, 418 P.2d 527 (1966).
Corporation was properly served when the individual registered agent was properly served and thus the trial court had in personam jurisdiction. Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo. App. 1986).
Service shall be made upon agent in county where action is brought. In a suit against a foreign corporation, service must be made upon it by delivering a copy of the summons to its agent found within the county where the action is brought. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).
It is only in such agent not found within the county that substituted service is valid. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).
Service upon stockholder is a nullity unless agent is not found. Service upon a stockholder, unless there is a failure to find the agent, is a nullity. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).
A person engaged in settling an insurance loss in state is an agent. Where a foreign insurance corporation employs an adjusting company to settle a loss sustained in Colorado and an employee of the latter company is given the insurance company's files and drafts for payment of any sum agreed upon in settlement of the claim and invested with full power to make the adjustment, then, in these circumstances, such an employee of the adjustment company is the agent of the insurance company, and service of process on him is service on the latter company. Union Mut. Life Co. v. District Court, 97 Colo. 108, 47 P.2d 401 (1935).
In an action against a corporation upon a claim for services by an agent assigned by such agent to plaintiff, service of summons upon the agent who assigned the claim is not a sufficient service on the corporation. White House Mt. Gold Mining Co. v. Powell, 30 Colo. 397, 70 P. 679 (1902).
Service may be had upon stockholder. It is only in the event that no agent is found in the county that service may be had upon a stockholder. Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 P. 1061 (1900).
VII. PERSONAL SERVICE OUTSIDE THE STATE.
A. In General.
Law reviews. For article, "Some Footnotes to the 1945 Statutes", see 22 Dicta 130 (1945). For article, "Constitutional Law", see 32 Dicta 397 (1955). For article, "Another Decade of Colorado Conflicts", see 33 Rocky Mt. L. Rev. 139 (1961). For article, "Colorado's Short-Arm Jurisdiction", see 37 U. Colo. L. Rev. 309 (1965). For article, "Rule-Making in Colorado: An Unheralded Crisis in Procedural Reform", see 38 U. Colo. L. Rev. 137 (1966).
B. Natural Persons.
Law reviews. For article, "Conflict of Laws, Constitutional Law, Elections", see 30 Dicta 449 (1953). For article, "Civil Remedies and Civil Procedure", see 30 Dicta 465 (1953).
This rule relating to personal service outside the state is confined to the question of who is, or who is not, a resident of the state of Colorado. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).
Burden of proof is on plaintiff. When the question of Colorado residence is raised and a denial thereof is prima facie made, the burden of establishing, or proving, that defendants are in fact residents of Colorado is on plaintiffs. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).
"Residence" and "domicile" are commonly taken as being synonymous, notwithstanding that in precise usage they are not convertible terms. Rust v. Meredith Publishing Co., 122 F. Supp. 879 (D. Colo. 1954).
"Place of abode" is not necessarily synonymous with "domicile". The term "usual place of abode" has generally been construed to mean the place where that person is actually living at the time service is attempted; it is not necessarily synonymous with "domicile". Neher v. District Court, 161 Colo. 445, 422 P.2d 627 (1967).
Residence is determined by intention of parties supported by acts. Domicile, or residence as used in this rule, in a legal sense, is determined by the intention of the parties. But while intention seems to be the controlling element, it is not always conclusive unless the intention is fortified by some act or acts in support thereof. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).
The issue of domicile is a compound question of fact and intention. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).
A change of voting place surely is compelling evidence of the intention of making a change of residence. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).
Residence may commence in another state before a definite county or precinct is fixed for a permanent residence. Kellner v. District Court, 127 Colo. 320, 256 P.2d 887 (1953).
C. Other Than Natural Persons.
A corporation organized under the laws of one state is a resident of that state under whose laws it was created and cannot be a resident of any other state. Rust v. Meredith Publishing Co., 122 F. Supp. 879 (D. Colo. 1954).
Even if a corporation has permission to carry on a business in another state upon compliance with the laws of the other state, such permission and compliance does not make it a resident of such other state. Rust v. Meredith Publishing Co., 122 F. Supp. 879 (D. Colo. 1954).
D. Status or In Rem.
Under this rule, service is good if it can be said that the action is one affecting a specific "status" or is a proceeding "in rem". Owen v. Owen, 127 Colo. 359, 257 P.2d 581 (1953).
Colorado recognizes the concept "in rem" or "quasi in rem" jurisdiction acquired through attachment or garnishment of the defendant's property within the state by providing for service of process on owners of specific property without regard to residence or domicile. A judgment which is rendered in such a case operates solely upon the res attached. George v. Lewis, 204 F. Supp. 380 (D. Colo. 1962).
Service outside state for divorce is valid. Personal service outside the state when made upon a defendant in an action for divorce is valid, since an action for divorce unquestionably is an action "in rem". Owen v. Owen, 127 Colo. 359, 257 P.2d 581 (1953).
The rule is not applicable to proceedings for annulment in that matrimonial "status" is not the subject. Owen v. Owen, 127 Colo. 359, 257 P.2d 581 (1953).
VIII. OTHER SERVICE.
A. In General.
Law reviews. For article, "Again -- How Many Times?", see 21 Dicta 62 (1944).
Annotator's note. Since section (g) of this rule is similar to § 45 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.
Where no judgment "in personam" is sought by plaintiffs against a nonresident defendant, the service of summons by publication is proper. Hoff v. Armbruster, 125 Colo. 324, 244 P.2d 1069 (1952).
In cases affecting specific property or in other proceedings in rem, section (g) specifically authorizes service by publication upon a nonresident. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).
Proceedings by wife to charge husband's property with alimony is a proceeding "in rem". Where the plaintiff seeks to charge her husband's property with her alimony, and to set aside conveyances made in fraud of her rights, the suit is a proceeding "in rem" within the meaning of this rule. Hanscom v. Hanscom, 6 Colo. App. 97, 39 P. 885 (1895).
A creditor's bill is a proceeding in rem, within the meaning of this rule. Shuck v. Quackenbush, 75 Colo. 592, 227 P. 1041 (1924).
Actions "in the nature of actions in rem" may be supported by constructive service as fully as those truly "in rem". Kern v. Wilson, 91 Colo. 355, 14 P.2d 1014 (1932).
Service by publication of summons in actions "in rem" is not limited to cases involving real estate, but may apply to those involving personal property as well. Hoff v. Armbruster, 125 Colo. 324, 244 P.2d 1069 (1952).
Where plaintiff fails to initiate a traditional in rem action or a quasi in rem action in a negligence suit, service by publication was improper. ReMine ex rel. Liley v. District Court, 709 P.2d 1379 (Colo. 1985).
Substituted service is not available outside the state. Unlike residents, nonresidents must be served personally under the plain language of subsection (f)(1). United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).
B. By Mail.
The mandatory requirements of this rule include a verified motion by either the plaintiff or counsel in his behalf for an order for service by mail, a hearing "ex parte", and entry of an order of court directing the clerk to send a copy of process by mail to known out-of-state defendants. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957).
Where a plaintiff does not follow this rule and omits not one but many mandatory steps set out therein, it is error to permit a judgment to stand. Jones v. Colescott, 134 Colo. 552, 307 P.2d 464 (1957).
If summons is properly addressed but not received, it will be presumed that postage was not prepaid. Where it is shown that a copy of the summons in a cause brought against a nonresident defendant was properly addressed and mailed to the defendant whose place of residence was well known, where he had resided for years, and where he was accustomed to receive his mail-matter regularly, but that the same was not received by him, it will be presumed, in the absence of proof to the contrary, that the sender omitted to prepay the postage. Morton v. Morton, 16 Colo. 358, 27 P. 718 (1891).