Greene v. Phares

237 P.2d 1078 (1951)

124 Colo. 433

GREENE v. PHARES et al.

No. 16397.

Supreme Court of Colorado, en Banc.

November 5, 1951.

Samuel W. Johnson, A. E. Small, Jr., Denver, for plaintiff in error.

Arthur A. Brooks, Jr., Denver, for defendants in error.

CLARK, Justice.

The parties will herein be designated as plaintiffs and defendant, as they appeared in the trial court, where plaintiff in error was defendant.

Defendant brings the cause here by writ of error to have reviewed a final judgment of the district court entered by default against her. There is no controversy concerning venue, nor of the right to file the action in the court of plaintiffs' selection. The sole issue for determination is that of whether such service of process was had as to confer upon the trial court jurisdiction over either the person or property of defendant.

It is elementary law that lack of jurisdiction may be raised at any stage of legal proceedings, even after the entry of judgment; furthermore, that any purported judgment entered where want of jurisdiction is manifest may be attacked either directly or collaterally. In this case it clearly and affirmatively appears from the record that no summons, or other process, was served upon defendant, either in person or by substitution, and this is, in fact, admitted; but it is contended that service was had upon her attorney. However, until after entry of judgment, she had no attorney of record, nor attorney authorized as one upon whom service might be made in her behalf; neither had she entered any appearance either in person or by attorney. No process having been served upon defendant or upon any person authorized in her stead, and she having entered no appearance in the action, the court was entirely without jurisdiction of either the person or property of defendant; its judgment against her is a nullity, and cannot properly be affirmed; therefore, the judgment of the trial court should, and accordingly is, reversed and the cause remanded with directions to the trial court to vacate and set aside its judgment against defendant, and to proceed no further against her unless, and until, it shall be made to appear to the court that due and proper service of process has been had upon her in manner and form as prescribed by law and our rules of civil procedure.

Nothing herein shall be construed to affect or modify any ruling, order or judgment of the trial court entered in said action insofar as the same pertains to other defendants not appearing in this court.