Subpoena, Summons, Constitutionally Correct

Subpoena, Summons, Constitutionally Correct:

17 F. 126

Circuit Court, D. Colorado.




June 27, 1883.


At Law.


West Headnotes (2)

[1] Creditors’ Remedies

Defects, objections, and amendment

108HCreditors’ Remedies

108HVIIParticular Remedies––Garnishment


108HVII(C)4Parties, Process, and Appearance


108Hk744Summons or Other Notice to Garnishee;  Writ of Garnishment

108Hk744(5)Defects, objections, and amendment

(Formerly 189k96 Garnishment)

A garnishee in Colorado is entitled to 10 days in which to appear and answer, “as in other summons in courts of record”; and, when the summons is made returnable within 10 days from the date of service, it is a fatal defect.

Cases that cite this headnote


[2] Process

Name in which writ should run


313INature, Issuance, Requisites, and Validity

313k28Name in which writ should run

The legislature of a state may prescribe the form of process, but in so doing the provisions of the constitution must be observed; and where the constitution provides that every summons shall run in the name of the people, a summons in the form given in the statute, but not in the name of the people, is deficient.

Cases that cite this headnote

Attorneys and Law Firms

*126 Mr. Campbell, for plaintiff.

Henry T. Rogers, for garnishee.


HALLETT, J., (orally.)

Manville recovered a judgment against the Battle Mountain Company in the district court of Lake county, and took out execution, and procured the Belden Mining Company to be *127 summoned as garnishee. That company entered a motion to quash the summons and the return of the sheriff thereon, and removed the cause into this court. The motion has been presented here.

Objection is made that the summons does not run in the name of the people, as required by the constitution of the state, article 6, Sec. 30. And the objection seems to be well taken. Unquestionably the legislature may prescribe the form of process, but in doing so the provisions of the constitution must be observed. This process appears to be in the form given in the statute, (2 Sess. 1879,) but it is deficient in that it does not run in the name of the people, as required by the constitution. That it is not in the form of other process used in law actions is not important, and the circumstance that it was issued by the sheriff, rather than the clerk, is not important. In these particulars the authority of the legislature cannot be denied; but the constitution cannot be disregarded.

The statute also provides that in courts of record ‘the summons shall be made returnable, and be served the same as other summonses in courts of record;‘ and this seems to require that the time for answering shall be the same as in actions at law. In this instance the summons was made returnable within 10 days from the date of service. This is a fatal defect. The garnishee was entitled to 10 days in which to appear and answer, and if service was not made in the county where the judgment remained, then to a longer time.

The motion will be allowed, and the cause dismissed.

All Citations

5 McCrary 328, 17 F. 126

About Paul John Hansen

Paul John Hansen -Foremost I love the Lord, His written Word, and the Elect Family of God. -My income is primarily derived from rental properties, legal counsel fees, selling PowerPoint presentations. -I am a serious student of territorial specific law, and constitutional limitations of the US and STATE Governments. -I have been in court over 250 times. -I have received numerous death threats that appear as to come from NEBRASKA STATE agents. -I have been arrested an estimated 8 times. Always bogus false warrants, misdemeanor charges. (Mostly Municipal Housing Codes, or related acts.) -I file no Federal Income Taxes (1040 Form) since the year 2001. (No filings in any form.) -I pay no State income taxes. -I do not pay STATE sales tax on major purchases. -I pay no COUNTY property taxes with out a judicial challenge. ( I believe I have discovered a filing for record process that takes my land off the tax roles. ) -I currently use no State drivers license, carry no vehicle liability insurance, do not register my automobiles. -I do not register to vote for any representatives. -I am a 'free inhabitant' pursuant to Article 4 of The Articles of Confederation. (Not a US citizen.) -I am subject to the Church jurisdiction, and a strong advocate of full ecclesiastical independence from the United States jurisdiction. -I believe in full support of the perpetual Union as found in the Articles of Confederation. -I believe that a free inhabitant has the lawful standing to choose to live independent of the constitutional corporate US governments, and its statutory courts in the vast majority of his daily life, and to be forced to do otherwise is slavery. -I believe that most all US written law is constitutional, but most all of that same law is misapplied upon jurisdictions where it has no force and effect of law and the bar association has perfected a system of keeping the people from knowing its true application. Order my 5$ presentation 'Free Inhabitant One A', for the truth in limited jurisdiction of all US written law.
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