DocketNumber: No. 12,722.
Citation Numbers: 14 P.2d 1014, 91 Colo. 355
Judges: MR. JUSTICE BURKE delivered the opinion of the court.
Filed Date: 9/26/1932
Status: Precedential
Modified Date: 1/12/2023
PLAINTIFF in error was plaintiff and defendants in error were defendants in the trial court. They are hereinafter designated as there.
Plaintiff traded four lots in Boulder and certain land, growing crops, live stock and other personal property in *Page 356 Ray county, Missouri, to defendants for a Kansas City apartment house, furnished. Claiming fraud, misrepresentation and mutual mistake, plaintiff brought this suit to recover of defendants approximately $1,900, and have his judgment established as a lien against the Boulder lots, and so foreclosed.
Defendants were served personally in said Ray county. They appeared "specially" by counsel and moved to quash summons and service; (a) because of a variance between complaint and summons; (b) because the action was not in rem, hence personal service outside the state was no service. The motion was sustained, plaintiff elected to stand and the cause was dismissed at his costs. To review that judgment he brings error.
Plaintiff sets out four separate items of damages, i. e.: $1,350 for defendants' false representations that they owned furniture in the apartment house which was in fact owned by the tenants; $125.26 which he necessarily paid to discharge two liens which defendants falsely represented did not exist; $400 for defendants' misappropriation of rents which belonged to him; and $42.69, made up of two "mutual mistakes," of $32.69 and $10.00, respectively. As to the first, plaintiff says defendants made "false representations * * * with intent that it should be believed and acted upon" by reason whereof "he has been damaged." As to the second, he says, "whereby plaintiff was damaged." As to the third, he says, "defendants wrongfully retained possession" and "collected and wrongfully retained and converted to their own use certain rentals * * * whereby plaintiff has been damaged." As to the fourth, he says he "has been damaged in the sum of," etc. After setting forth these several items he refers to them as "all the foregoing items of damage," and his summons recites that the action is brought to recover the amount claimed as "damages for misrepresentation and breach of contract."
[1] Plaintiff contends for the validity of vendor's *Page 357
liens, citing Francis v. Wells,
[2] But plaintiff says, even so, defendants made a general appearance when they raised the question of a variance between complaint and summons. We think otherwise. That a defendant cannot make his appearance "special" by mere assertion, that a voluntary general appearance waives all objections to summons, *Page 358 service and return, and that such an appearance is made by a motion which involves the merits or raises questions of mere irregularities in the pleadings, are all fundamental. But where one, ostensibly summoned to answer in a suit for damages for misrepresentations in a horse trade, finds pending against him in lieu thereof a suit for divorce, the court has no jurisdiction of his person for the purpose of the divorce suit unless he voluntarily submits thereto. We think an appearance for the sole purpose of raising such questions may be special. 2 Rawle C. L., p. 327, § 7; 21 Rawle C. L., p. 1323, § 71.
The judgment is affirmed.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE HILLIARD concur.