C.r.c.p. 3
C.r.c.p. 3
ANNOTATION I. GENERAL CONSIDERATION. Law reviews. For article, "One Year Review of Civil Procedure and Appeals", see 40 Den. L. Ctr. J. 66 (1963). For article, "Civil Procedure", which discusses Tenth Circuit decisions dealing with jurisdiction, see 65 Den. U. L. Rev. 405 (1988). Annotator's note. Since this rule is similar to § 34 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Applied in Havens v. Hardesty, 43 Colo. App. 162, 600 P.2d 116 (1979); DiChellis v. Peterson Chiropractic Clinic, 630 P.2d 103 (Colo. App. 1981); Styers v. Mara, 631 P.2d 1138 (Colo. App. 1981); Johnson v. McCaughan, Carter & Scharrer, 672 P.2d 221 (Colo. App. 1983). II. HOW COMMENCED. A. Complaint or Summons. An action is commenced by the filing of a complaint or by the service of a summons, which gives a court jurisdiction over the plaintiff and of the action, but not over the person of a defendant, as this can only be acquired through legal service of process. Nelson v. District Court, 136 Colo. 467, 320 P.2d 959 (1957). For historical review of this alternative procedure, see Haley v. Breeze, 16 Colo. 167, 26 P. 343 (1891); Stevens v. Carson, 21 Colo. 280, 40 P. 569 (1895). The initial pleading is not required to be filed at the time of the service of summons, but ten days thereafter. Ardison v. Villa, 248 F.2d 226 (10th Cir. 1957). While a case may pend indefinitely on the filing of the complaint alone, if its status is challenged by the administrative action of the court or by motion to dismiss, then a showing must be made to justify the delay in effecting service of process. Nelson v. Blacker, 701 P.2d 135 (Colo. App. 1985); Cullen v. Phillips, 30 P.3d 828 (Colo. App. 2001). Where a summons relied upon as an initial pleading does not purport to set forth the claim for relief upon which the action or proceedings is based, it is merely a writ, not a pleading, which must follow within 10 days. Ardison v. Villa, 248 F.2d 226 (10th Cir. 1957). Complaint fixes the nature of a suit. Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973). Filing of an EEOC charge does not constitute the filing of a "complaint" within the meaning of this rule. Bennett v. Furr's Cafeterias, Inc., 549 F. Supp. 887 (D. Colo. 1982). B. Dismissal. Dismissal is discretionary. Authority to dismiss an action for failure to file the complaint within the time prescribed rests in the sound legal discretion of the court, because the phrase "may be dismissed" is not the language of a command nor of a penalty; it indicates rather that it is discretionary. Knight v. Fisher, 15 Colo. 176, 25 P. 78 (1890); Burkhardt v. Haycox, 19 Colo. 339, 35 P. 730 (1894). This discretion should not be arbitrarily exercised. Knight v. Fisher, 15 Colo. 176, 25 P. 78 (1890); Burkhardt v. Haycox, 19 Colo. 339, 35 P. 730 (1894). It would not be proper to dismiss the cause even though jurisdiction of defendant's person is lacking where the action is instituted and jurisdiction of the court is acquired by the filing of the complaint. Everett v. Wilson, 34 Colo. 476, 83 P. 211 (1905). Dismissals under this rule are without prejudice and do not operate as an adjudication on the merits. Morehart v. Nat'l Tea Co., 29 Colo. App. 465, 485 P.2d 907 (1971). Case reinstated where seasonable complaint mislaid. Where a case has, arbitrarily and "ex parte", been dismissed at the instance of defendant without notice to plaintiff on the alleged ground of failure to file the complaint within ten days, the court may, on a showing that the complaint had been seasonably lodged in the clerk's office and had been mislaid, set aside the dismissal and reinstate the case. Howell v. Goldberg, 98 Colo. 412, 56 P.2d 1330 (1936). Allowance of attorney's fees held erroneous. Where there is no evidence as to whether the complaint was or was not filed, no expression of the opinion by the trial court that the action was vexatiously commenced, and no evidence as to what amount would constitute a reasonable attorney's fee to be taxed as costs, an allowance of attorney's fees under this rule is erroneous. Schwarz v. Ulmer, 149 Colo. 601, 370 P.2d 889 (1962). III. TIME OF JURISDICTION. Jurisdiction of the subject matter attaches in the court upon the filing of the complaint according to section (b) of this rule; and, when all parties involved make a general appearance, the court then has exclusive jurisdiction over both the subject matter and the parties, and no other court of coordinate power can interfere with its action. Pub. Serv. Co. v. Miller, 135 Colo. 575, 313 P.2d 998 (1957); Powder Mtn. Painting v. Peregrine Joint Venture, 899 P.2d 279 (Colo. App. 1994). On the filing date, the court acquires jurisdiction. On the date that a complaint is filed stating facts which, if proven, would authorize the court to enter a judgment in favor of the plaintiff and against defendant, an action is pending on such date, and on such date the court acquires jurisdiction thereof. Powell v. Nat'l Bank, 19 Colo. App. 57, 74 P. 536 (1903). Jurisdiction not properly invoked when court order entered. Gutierrez v. District Court, 183 Colo. 264, 516 P.2d 647 (1973); White v. Dept. of Inst., 883 P.2d 575 (Colo. App. 1994).