
    [No. 4371.]
    Mottschall v. Mottschall.
    Divorce — Summons.
    A summons in a divorce suit which, commands defendant if served within the county in which the action is pending to appear and answer the complaint within twenty days after service thereof does not authorize the court to proceed to judgment where the defendant was served in the county and failed to appear. The defendant in an action for divorce if served within the state is entitled to thirty days within which to appear and plead and the time within which he is required to appear must be stated in the writ.
    
      Error to the County Court of Yuma County.
    
    Mr. George E. McConley, for plaintiff in error.
   Chief Justice Campbell

delivered the opinion, of the court.

This action for a divorce was brought in the county court of Yuma county. The summons requiring defendant to appear within twenty days, if served in the county, was personally served upon the defendant in that county. He did not appear within that time, as therein commanded, and the court proceeded to take evidence as though defendant was duly served, and granted a decree of divorce which contained provisions with respect to alimony and adjusted the property rights of the parties. The defendant, specially appearing, unsuccessfully moved to have the decree set aside on the ground that the court erred in proceeding to trial on service of such summons. He thereupon sued out this writ of error to review the judgment complained of.

The divorce act of 1893 (Session Laws 1893, 236), is decisive of this controversy in favor of plaintiff in error. The summons which was served in the county required defendant to answer the complaint within twenty days after the service thereof. Sec. 3 of the divorce act, however, declares that if service of summons in a divorce suit be made within the state of Colorado, the defendant shall have thirty days thereafter within which to appear and plead to the complaint, and it further provides that the time within which appearance must be made shall be stated in the writ.

Upon a service of a summons in a divorce suit in which the defendant] if served within the county in which the action is pending, is required to appear and answer the complaint within twenty days thereafter, the court is not authorized to proceed to a .judgment if defendant fails to comply with such command; for it is in direct conflict with the mandatory provision of the divorce act which gives a defendant thirty days to appear and answer in such circumstances, and which also requires that the time shall be stated in the summons. Because of the insufficiency of the service of such a writ, the decree is reversed and the cause remanded.

Reversed.  