of a summons by plaintiff's attorney. The court, in passing upon it, said, that public policy forbade that they should now repudiate this practical construction and hold that the attorney of record of a party cannot serve his summons. The case

is further distinguishable from the one at bar in this, that the section of their code makes no provisions that the summons, when served, shall be returned to the attorney who issued it. The Minnesota act further provides that the summons must be subscribed by the plaintiff or his attorney.

From the time of the adoption of our present code, so far as we are advised, it has never been construed as authorizing the service of a summons by the plaintiff's attorney. Indeed, this seems to be the first case in which it has ever been attempted. We think that the language of the statute forbids that we should now hold that an attorney of record can serve his summons.

Having determined that the attorney of record was without authority to serve the summons, can a default judgment bet set aside in another action for that reason?

In Wellington v. Beck, 29 Colo. 73, it was held that a scire facias or summons to hear errors issued by the clerk of this court must be directed to the sheriff of the county where the defendant in error resides or may be found, and no other person than the sheriff or his authorized deputy has authority to serve such summons; that an attempted service of such summons made by a person not authorized by law to make such service is a nullity, and that unless a summons to hear error is served, as by law required, or such service is in some way waived, this court is without authority to render judgment against a defendant in error. The suing out of a writ of error is the institution of a new suit. We see no distinction between the service of a scire facias to hear errors in this court, and the service of a summons under the code; each must be made in the manner provided by law, and unless so made, or unless such service is in some way waived, a judgment entered thereon is at least subject to this kind of an at

tack.-Clark & Freeman v. Patterson, 58 Ver. 676; Bush v. Meacham, 53 Mich. 574; Singletary v. Carter, 21 Am. Dec. (S. C.) 480; Lee et al. v. Fox et al., 89 Ill. 226; Filkins v. O'Sullivan et al., 79 Ill., 524; Noleman v. Weil, 72 Ill., 502; Witt v. Kaufman, 25 Tex. Sup. 384; Hickey v. Forristal et al., 49 Ill. 255.

For the reasons stated, the judgment is reversed and the cause remanded with instructions that the demurrer raised here for the first time pertaining to the absence of the jurisdictional averment be, by the trial court, sustained, with leave to the parties to amend their pleadings as they may be advised. Reversed.

Decision en banc.

Mr. JUSTICE WHITE dissenting.

CHIEF JUSTICE CAMPBELL not participating.

[No. 7019.]

COULTER V. THE PEOPLE.

1. CONTEMPT-Affidavit-If the affidavit upon which proceedings to punish an alleged contempt are based fails to allege facts which, if true, constitute a contempt, jurisdiction is not acquired.

2. -Withholding or Secreting Last Will-A complaint in the county court, under sec. 7080 of the Revised Statutes, alleging merely the death within the county, of a person named, and that such person left a last will in the custody of the alleged contemnor, who wilfully withholds or secretes the same, not stating that the decedent's last place of residence was within the county, or that he was a non-resident, or owned real or personal property within the county, is fatally defective in failing to show jurisdiction in such county court to receive probate of the will.

Error to Routt County Court.-Hon. CHARLES A. MORNING, Judge.

Messrs. MORRISON & DESOTO, for plaintiff in error.

Hon. BENJAMIN GRIFFITH, attorney general, Mr. CHARLES O'CONNER, assistant attorney general, for the people.

Mr. JUSTICE WHITE delivéred the opinion of the court:

Plaintiff in error was adjudged to pay a fine, “as for contempt of court," upon the charge that he had secreted or wilfully withheld the last will of one J. M. Snowden, deceased, and brings the matter here for review.

The proceedings are based upon Sec. 7080 R. S. That section requires, as an essential pre-requisite to the jurisdiction of the county court in proceedings thereunder, that a complaint be filed by some credible person, showing, inter alia, that the accused has, or there is reason to believe he has, in his possession the last will of a person deceased, "whereof such court hath jurisdiction to receive the probate, and secretes or wilfully withholds the Same," etc.

The county court of Routt county did not have jurisdiction to probate the last will of every deceased person departing this life within such county. Its jurisdiction in that respect, extended only to those wills, the makers of whom had their last known residence in that county, or had no residence in this state, but whose personal property or greater part thereof was found within the county, or who left no personal estate and whose real estate or greater part thereof was situated in said county. Sec. 7102 R. S.

Testing the complaint initiating the proceedings at bar by these rules, it is found fatally defective, in that it fails to show that the county court had jurisdiction to receive the probate of the will in question. While the complainant states that, "J. M. Snowden departed this life at the town of Craig, in the county of Routt, state of Colorado, on or about the 9th day. of February, A. D. 1909, leaving in the care, custody and control of one John A. Coulter a last will and testament as this affiant is informed and believes, disposing of his property," etc., it does not state that deceased's last known residence was

within such county, or that he was a non-resident of the state, or that he owned real or personal property within such county. It may be that deceased, at the time of his death, was temporarily sojourning the Routt county with his place of known residence in an adjoining or some other county of this state; or he may have been a non-resident of the state possessing no property within the county in question.

The allegation in the complaint that plaintiff in error had held himself out to be and acted as the executor of the last will and testament of deceased, and taken possession of his personal property and dealt with the same in such capacity, in no wise removes the fatal defect in the complaint. For aught that appears, either therein or in the record, the last will of deceased may have been probated in the county court having jurisdiction thereof, in some other county of the state, and plaintiff in error qualified thereunder, and duly authorized to act in the premises.

It is elementary that if the affidavit or complaint upon which contempt proceedings are based, is defective in substance, that is, fails to allege facts which, if true, will constitute contempt in law, the court will not acquire jurisdiction, and if it proceeds, its judgment must be reversed on error. Sec. 94, Rapalje on contempts.

The case of Batchelder v. Moore, 42 Calif. 412, 415, is peculiarly applicable to the facts of this. It is there said:

"In the case here the proceeding is based wholly upon the statute of 1862 (page 115), 'An act for the punishment of contempts and trespasses.' That statute provides that 'every person who shall have been, or shall be hereafter, dispossessed or ejected from' premises under the judgment of a court, and who shall himself re-enter, or procure someone else to re-enter, etc., shall be deemed guilty of a contempt, etc. It is essential that the person accused should be one who has been ejected or dispossessed, as provided in the act; and unless he be such person, the act has no application whatever, and he cannot be guilty of the contempt therein denounced. In the

affidavit of Batchelder there is a total omission to allege that Calderwood was such a person, and the omission is obviously jurisdictional in its consequences."

So here, the party making the will, alleged to have been withheld, must have been a person whose last will the county court of Routt county would have jurisdiction to probate; and unless the will be of such person, that court can have no concern therewith, and one withholding such will can in no sense be in contempt of that court. It necessarily follows that the judgment of conviction was wrong, and it is, therefore, reversed. Judgment reversed.

Mr. JUSTICE MUSSER and Mr. JUSTICE GARRIGUES concur.

[No. 7107.]

POWERS V. THE PEOPLE.

1. CRIMINAL LAW-Right of Accused to Time for Preparation for Trial-To deny to an accused person reasonable opportunity to prepare for trial is not consonant with the fair and impartial administration of the law.

But where the informations were for a conspiracy to commit certain offenses, the fact that informations had been filed, months previously, based upon the same transactions, and charging the offense itself, that one of these had been set for trial, and afterwards continued, and counsel for the accused had been repeatedly advised by the district attorney that whenever the trial should occur it would be for a conspiracy to commit the offense, and not for the offense itself, so that counsel for the accused had had ample time for conference with his client, and to acquaint himself with the facts, and no claim was made that time was required to secure the attendance of witnesses, it was held that the accused was not prejudiced by requiring him to proceed to trial, immediately upon the denial of a motion to quash the information.

2. Confidence Game-The essential ingredients of the device designated by the statute (Rev. Stat. sec. 1783) as "confidence games" is the obtaining of the money of another by taking advantage of confidence which he reposes in the swindler. Those who combine to induce another to bet upon one of the contestants in a foot race, which it is arranged and agreed between them he shall lose, are guilty of a conspiracy to commit the offense denounced by the statute.