LOMAX v. BESLEY.

27 P. 167

1 Colo.App. 21

LOMAX et al.
v.
BESLEY.

Court of Appeals of Colorado

June 23, 1891

Error
to Park county court.

Bailey
& Wilkin, for plaintiffs in error.

W.H.
Nash and R.D. Thompson, for defendant in error.

RICHMOND,
P.J.

In
January, 1883, defendant in error, Irving Besley, filed in
the office of the county clerk of Park county a notice of a
claim amounting to $340.60 against plaintiffs in error. Lomax
and Cowell, for work and labor done and moneys expended on
the Coney lode in Mosquito mining district, property of the
plaintiffs in error, and by said notice claimed a lien upon
the mine to the amount of his claim. July 4, 1883, he
instituted an action to enforce the lien, and on the same day
filed an affidavit in support of an application for service
of summons by publication. Thereafter the court made the
following order: "It is hereby ordered by the court that
personal service cannot be had; that service be by
publication in Fairplay Flume. Ordered July, 1883. V.G.
HOLLIDAY, Judge." August 9th judgment was rendered
against the plaintiffs in error for the sum of $449.31 and
costs. To
[27 P. 168.]
reverse this judgment this writ is prosecuted. The record
fails to show the issuance of summons, nor does it appear
that publication was made as required by law, no affidavit to
that effect having been filed. Whether service could be
obtained by publication in this class of cases we need not
here decide, as the record fails to show compliance with the
requirements of the Code, where service may be obtained by
publication. Without service of some kind the judgment should
not have been rendered, and so rendered was absolutely void.
The judgment is reversed, and cause remanded.