Sommer v. Unknown Heirs of Hahn ( 1916 )

Opinion by

Mr. Justice Teller.

Plaintiff in error began an action in attachment against the defendants; the writ issued and levy was made on lands in Lincoln County, on July 12, 1911. The action was to recover an agent’s commission on the sale of lands. On September 7, 1912, defendant Brown filed a'motion to dissolve the attachment on. the ground that he was not indebted to the plaintiff. The motion was supported by an affidavit of Brown that he was not indebted to the plaintiff, and by an affidavit of defendant Hahn in which he stated that he was one of the defendants in the action; that there was nothing more due plaintiff till a further payment was made on the purchase price, and that defendant Brown was not a party to the contract for a commission to plaintiff, and owed him nothing. Notice of this motion was served upon plaintiff’s attorneys, which notice contained a formal entry of appearance by Brown.

October 12, 1912, the motion to dissolve the attachment was sustained, and the action dismissed. A motion to reinstate was overruled. This action of the court in dismissing the case is assigned as error.

Plaintiff in error contends (1) that the motion to dismiss was in effect an answer, the only ground thereof being that defendant did not owe plaintiff, and that the filing of the motion constituted a general appearance; and (2) that, the motion being only to dismiss as to Brown, the court had no right to dismiss as to Hahn, who had filed no motion.

It should be observed that the order of dismissal recites the appearance of Brown, by his attorney, and that the motion was filed by Brown, no mention being made of Hahn.

In Everett v. Wilson, 34 Colo. 476, 83 Pac. 211, it is held that a motion to dissolve an attachment and dismiss the action constitutes a general appearance. This is decisive of the case as to Brown.

The court then appears to have dismissed the cause because he found that defendant Brown was not indebted to the plaintiff; in other words, the cause was tried on an issue made by the motion.

This was error. A cause cannot be so tried.

The judgment is therefore reversed.

Judgment reversed.

Mr. Justice White and Mr. Justice Htt.t, concur.