Hoyt v. Macon
Supreme Court of Colorado
Error to Probate Court, Fremont County. Action on tbe case brought to the December term, 187Í, of the probate court of Fremont county, which convened December 4th. The summons was served November 27, and the declaration was filed January 24,1872, and was as follows: “Augustus Macon, the plaintiff, complains of Samuel N. Hoyt, the defendant, of a plea of trespass on the case.
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Error to Probate Court, Fremont County. Action on tbe case brought to the December term, 187Í, of the probate court of Fremont county, which convened December 4th. The summons was served November 27, and the declaration was filed January 24,1872, and was as follows: “Augustus Macon, the plaintiff, complains of Samuel N. Hoyt, the defendant, of a plea of trespass on the case. For that, whereas, the said plaintiff, before and at the time of the commencement of this suit and proceedings, in the land office of the United States, at Denver, in said territory hereinafter next mentioned, had not…
1Opinion of the CourtWells, J.
It was held in Hoehne v. Rupear, 1 Col. 405, that judgment for default of appearance, or for want of a plea, cannot be given on the first day of the return term of the process. In the present case the summons was served less than ten days before the return day ; the cause was continued and the default was entered on the first day of the second term. A different question is therefore presented than in the case cited. By the fifth section of the practice act (R. S., ch. LXX), made applicable to the probate court, by the act of March 11, 1864 (R. S., ch. LXXI, § 28), it is provided that if the…
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