Franklin v. Macedonia Baptist Church
Franklin v. Macedonia Baptist Church
Opinion of the Court
Judgment affirmed en banc without written opinion.
delivered the opinion of the court.
A forcible entry and detainer action instituted in the district court pursuant to chapter 70, 1935 Colorado
Counsel for defendants (plaintiffs in error), proceeding by petition for rehearing, and stressing one question, namely, the “legal jurisdiction of the parties, and the subject matter,” and emphasizing statements by us in opinions called to our attention, urges that we write an opinion thereon. The circumstances considered, we are constrained to believe that counsel’s request is reasonable, and, moreover, that formal exposition of our views on the point may be of value to the profession generally.
The point has genesis in the statutory chapter cited above, section 10 whereof provides, inter alia, that “The mode of commencing proceedings under the provisions of this chapter shall be by filing a complaint in writing, duly verified,” etc. The complaint was not verified. Defendants’ answer, filed pursuant to section 13 of said chapter, as should be noted, was verified.
The cause went to trial, and at the close of plaintiff’s case, defendants, citing and emphasizing section 10 of the act, from which we quoted immediately above, moved to dismiss the case, for that, as said, inter alia, the “complaint * * * is unverified.” Thereupon, counsel for plaintiff, invoking the discretion of the court, asked “leave to verify” the complaint, which was granted, and formal verification thereof followed. The trial proceeded to conclusion, with resolution as already stated.
The burden of defendants’ contention is, that, since the statute requires that a complaint in an action, of the nature here under consideration, shall be verified, the requirement is of jurisdictional dignity, failing which the court was without jurisdiction, and an order of dismissal was imperative. In the Colorado authorities of defendants’ reliance, we reviewed records of cases origi
As the cases reviewed clearly indicate, had this case been begun before a justice of the peace, the point urged by defendants would be sound, and the court’s denial of their motion to dismiss would constitute material error. But since it was instituted in the district court, Does a different rule apply? We are of that view. The distinction is emphasized in the statute itself, as is evidenced by sections 14 and 21 thereof. Section 14 reads in part: “Upon the trial of cases before justices of the peace, arising under this chapter, the proceedings shall be governed by the rules of practice and provisions contained in the statutes of this state concerning justices and constables,” while it is provided by section 21 that, “In all actions brought under any provision of this chapter, in any court of record of this state, the proceedings shall be governed by the rules of practice and provisions of law concerning the trial of causes in such court.”
Not only does the distinction appear in the act itself, to which we have adverted, but the authorities generally, as we are persuaded, support that view. “The
In denying the motion of defendants to dismiss the action, and granting that of plaintiff to attach verification to the complaint at that point in the course of the trial, the court, as we think, proceeded within the limits of permissible judicial discretion vested in courts of record, and did not err.
Let the petition for rehearing be denied.
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