73 P.2d 987
No. 14,068.Supreme Court of Colorado.
Decided May 24, 1937. On rehearing judgment reversed November 15, 1937.
Suit on contract. Judgment for plaintiff.
On Rehearing.
Former Opinion Withdrawn and Judgment Reversed.
1. PROCESS AND WRITS — Summons — Jurisdiction. An unsigned summons has no validity and its service confers no jurisdiction on the court.
2. APPEAL AND ERROR — Defective Record — Jurisdictional Questions. Although abstract of record and assignments of error may be defective, the objections raised being jurisdictional, the appellate court may ignore the defects and pass upon the questions presented.
Error to the District Court of the City and County of Denver, Hon. James C. Starkweather, Judge.
Mr. W. DAVID McCLAIN, for plaintiffs in error.
Mr. THEODORE J. ADAMS, Mr. ROYAL C. RUBRIGHT, Mr. WILLIAM W. GAUNT, for defendant in error.En Banc.
MR. CHIEF JUSTICE BURKE delivered the opinion of the court.
[1, 2] We heretofore affirmed this judgment in department on the sole ground of defective abstract and assignments and on the authority of Zall Jewelry Co. v. Stoddard, 68 Colo. 395, 397, 190 Pac. 506. On petition of plaintiff in error a rehearing was granted and the cause
Page 357
transferred to the court en banc. On further examination and careful consideration of the abstract and assignments, but more particularly of the original bill of exceptions, it clearly appears that no summons was in fact served. The point is that the alleged summons was unsigned, and this is admitted. It therefore had no validity and its service gave no jurisdiction. Steedle v. Woolston, 88 N. J. L. 91, 95 Atl. Rep. 737; Ware v. Mosher, 52 Colo. 318, 320, 121 Pac. 751. The objection being jurisdictional, we have elected to ignore defective abstract and assignment, if such they be, and look to the whole record, as we have repeatedly held may be done in a proper case. Miller v. People, 23 Colo. 95, 97, 46 Pac. 111; Dailey v. Aspen Pub. Co., 46 Colo. 145, 146, 103 Pac. 303; Lombard v. Overland D. R. Co., 41 Colo. 253, 92 Pac. 695. Deeming this such, the result is inevitable. The former opinion is withdrawn and the judgment reversed.
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