Tyler v. McKenzie

Mr. Justice Goddard delivered the opinion of the court: 1. Counsel for plaintiff in error insist that the court committed a fatal error in assuming jurisdiction to try the action under the statute relating- to forcible entry and detainer, in the face of the record which shows a noncompliance with some of its essential requirements, relying upon the well-settled rule that, when the jurisdiction given by statute is clearly a summary one and the manner of obtaining such jurisdiction is prescribed by the statute, such provisions are mandatory and must be strictly followed, and the record must affirmatively show a compliance therewith. It appears affirmatively from the record that the provisions of the statute in regard to the issuance and service 'of a summons were not complied with. These provisions require that “the court shall issue a summons, * * * that it shall command the officer to whom it may be directed, to summons the person * * *”■ — Section 1980, Mills’ Ann. Stats. “Service of summons issuing out of a court of record shall be made in the same manner, and with like effect as prescribed before justice courts, in sec [237] tion 11 of this act, * # * Proof of snch service shall give the court jurisdiction of the person of the defendant, and of the subject-matter of the suit.”— Section 1991, Mills’ Ann. Stats. The following is the record entry in regard to the return and service of the summons in this case: “The original summons was never returned. Counsel for both parties agreed at the trial that the copy of summons in the files, from which this copy is made, is what was actually delivered to defendant by a person not an officer. ’ ’ Instead of the record, therefore, affirmatively showing a compliance with the mandatory requirements of the statute in regard to the issuance and service of the summons, it discloses that there was no attempt to comply with them in any particular. Under our statute, except as provided in subdivision 4 of section 1973, the only question to be determined in an action for unlawful detainer is the right to the possession of the premises, and.no demand for damages or rent can be joined in an action for such possession. — MacKenzie v. Porter, 40 Colo. 340. While it is manifest that such omissions, if availed of in apt time, would have rendered any further proceedings under the statute coram non judice, yet since the complaint on its face sufficiently stated a cause of action within the purview of subdivision 3 of section 1973 of the forcible entry and detainer act, although it contained matters not triable in such action, we are forced to the conclusion that by appearing and filing an answer the defendant cured the defect in the issuance and service of the summons, and his misapprehension as to the character of the action cannot be availed of to change the well-settled rule that an actual appearance always cures a defective service of a summons, when, except for such [238] defect, the court would have jurisdiction of the person and the subject-matter of the suit. We think, therefore, the court did not.err in overruling defendant’s motion to dismiss the action and in proceeding with the trial of the cause under the statute. 2. We think the error assigned upon the action of the court in instructing the jury orally and in invading the province of the jury in regard to the material facts that they were- called upon to determine under the issues made by the pleadings, necessitates. a reversal of the judgment. That it constitutes reversible error for the court to instruct the jury orally over the objection of counsel has been repeatedly held by this court. — Wettengel v. Denver, 20 Colo. 552; Lee v. Stahl, 9 Colo. 208; Crawford v. Brown, 21 Colo. 272. In the latter case the instructions were given orally by the judge, and taken down at the time by the stenographer, and it was there held that this was not a compliance with the statute. As the judgment must be reversed for the reason last stated, it is unnecessary to notice the further assignments of error. The judgment will be reversed, and the cause remanded. Reversed and remanded. Chief Justice Steele and Mr. Justice Bailey concur.