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4 Colo. 442

De La Mar v. Hurd

Supreme Court of Colorado

Decided December 15, 1878

Supreme Court of Colorado · decided 1878-12-15

<p>1. A bill of exceptions, to be considered, must be signed and sealed by tbe judge.</p> <p>2. Faults in pleading are, in some cases, aided by pleading over. Tbus in a complaint for wrongful detainer, wbieb showed privity between tbe plaintiff and one defendant only, and tbe defendants, husband and wife, filed a joint and several answer, tbe husband alleging no separate right in himself, but defending bis possession by allegations of bis wife’s right, held, that tbe husband, though not a party to tbe original contract, bad, by bis answer, put bimself in tbe position of a privy for tbe purposes of tbe action.</p>

Cited by 6 later decisions — most recently April 1898

6 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1878-12-15

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Elbert, J.

¶1This is an action of wrongful detainer under section 3 of the act concerning forcible entry and detainer. R. S., p. 332.

¶2What purports to be a bill of exceptions is neither signed nor sealed by the judge, and cannot be considered.

¶3Under the assignments it only remains to consider the sufficiency of the complaint.

¶4To the complaint it is objected, that, while it shows privity between the plaintiff and the defendant, Fannie A. De La Mar, it shows no privity between the plaintiff and the defendant, Frank De La Mar, her husband.

¶5The defendants appeared in the action and filed a joint and several answer. The defendant, Frank De La Mar, alleged no separate or distinct right -or title in himself, but defended his possession by allegations of the right and title of his wife, Fannie A. De La Mar.

¶6If it be conceded that privity between the plaintiff and defendant is essential to the maintenance of an action under this section, we are of the opinion that the privity of one of the defendants will support it where the co-defendant claims in right of the defendant that is privy. Though not privy to the original contract between the parties, he, by his answer, puts himself in a position of a privy for the purposes of the action.

¶7The answer in this respect aided the complaint, and taken in connection therewith, entitled the plaintiff to judgment upon proper evidence. G-ould’s Plead., p. 154, § 192.

¶8The judgment of the court below is

¶9Affirmed.

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