Gwillim v. First Nat. Bank

Mr. Justice Hayt delivered the opinion of the court. The summons in this case was served upon the defendant in the court below, Gwillim R. Gwillim, the present plaintiff in error, upon Tuesday, January 19, 1886, in the county of El Paso. No copy of the complaint was served with the summons. Shortly after this service of summons plaintiff in error employed the firm of Bentley & Hooke, practicing attorneys, to- defend the action. Before the legal time for answering the complaint had expired, to wit, upon the 1st day of the following February, the same being the second Monday after January 19, 1886, these attorneys filed in the court in which the action was pending their written notice of appearance for the defendant, and upon the same day served notice thereof upon J. L. Williams, Esq., attorney of record for the plaintiff, and at the same time made a written demand upon him for a copy of the complaint. The next day judgment by default was entered against the defendant for failure to answer the complaint, although no copy of the complaint had at the time been served upon him. As soon as the defendant learned of this judgment, which was within a short time thereafter, he filed a motion, in proper form, asking the court to set aside the default and judgment and permit him to plead to the complaint, which motion was supported by affidavits verifying the foregoing facts, so far as they did not appear from the record proper; but the court denied said motion and refused to set aside either the default or judgment theretofore entered. To review this action of the court the case is brought here on error. The entry of either default or judgment, under the circumstances, was cleai’ly erroneous. No copy of the complaint having been served with the summons, under the statute it was optional with the defendant, within the time specified therein, to either answer the complaint or cause notice of his appearance to be given and demand a copy thereof. The defendant, having adopted the lat [280] ter course, and in due time given notice of his appearance, and demanded a copy of the complaint, specifying the office of his attorneys, in the town of Colorado Springs, as the place within the state where the same might have been served, could not have been in default under the then existing law until such copy had in fact been served upon him or upon his attorneys of record, and the legal time thereafter for answering had expired. Sess. Laws 1885, p. 130, § 3. As no attempt was made by appellee, or any one for him, to furnish the defendant with a copy of the complaint, although the same was regularly demanded, both the default and judgment were erroneously entered, and should have been set aside upon the defendant’s motion. The judgment must accordingly be reversed, and the cause remanded with directions to the court below to proceed in accordance with the views expressed' in this opinion. Reversed.