Lomax v. Besley , 1 Colo. App. 21 ( 1891 )

Richmond, P. J.

In January, 1888, defendant in error, Irving Besley, filed in the office of the county clerk of Park county, a notice of a claim amounting to $840.60 against plaintiffs in error, John A. Lomax and Clarence L. Gowell, for work and labor done and moneys expended on the Coney lode in Mosquito Mining District, property of the plaintiffs in error, and by said notice claimed a lien upon the mine to the amount of his claim. July 4, 1888, he instituted an action to enforce the lien, and on the same day filed an affidavit in support of an application for service of summons by publication.

Thereafter the court made the following order: “It is hereby ordered by the court that personal service cannot be had; that service be by publication in Eairplay Flume. Ordered, July, 1883. V. G. Holliday, Judge.”

August 9th judgment was rendered against the plaintiffs in error for the sum of $449.31 and costs. To reverse this judgment this writ is prosecuted.

The record fails to show the issuance of summons, nor does it appear that publication was made as required by law, no affidavit to that effect having been filed.

Whether service could be obtained by publication in this class of cases we need not here decide as the record fails to show compliance with the requirements of the code where service may be obtained by publication. Without service of some kind the judgment should not have been rendered, and so rendered was absolutely void.

. The judgment is reversed and cause remanded.

Reversed.