The court of appeals agreed and applied the “priority pule” to the annexation proceedings, which states that “when more than one court can exercise jurisdiction over a matter, ‘the court first acquiring jurisdiction [over] the parties and the subject matter has exclusive jurisdiction.’ ” Sensible Housing Co., 2010 WL 3259829, at *4 (quoting Martin v. Dist. Court, 150 Colo. 577, 579, 375 P.2d 105, 106 (1962)). The court of appeals voided the annexation, reasoning that Minturn should have stayed the annexation proceedings pending the outcome of the quiet title litigation.
The exercise of concurrent jurisdiction is controlled by the principle of priority, which is sometimes referred to as the rule of exclusive concurrent jurisdiction. See Utils. Bd. v. Southeast Colo. Power Ass'n, 171 Colo. 456, 468 P.2d 36 (1970); Martin v. Dist. Court, 150 Colo. 577, 579, 375 P.2d 105, 106 (1962) ("the court first acquiring jurisdiction of the parties and the subject matter has exclusive jurisdiction, which perhaps more accurately should be denominated as a `priority of jurisdiction"'); see also 20 Am.Jur.2d Courts § 91 (2d ed. 2004). This rule is based on the public policies of preventing a conflict of decisions of two courts of concurrent jurisdiction and avoiding unnecessary duplication and multiplicity of suits.
The Colorado Supreme Court, in interpreting the delivery requirement of a processor version of this rule, held that it "clearly by its own terms does not require" that the delivery contemplated by the rule "be accompanied by a reading aloud of the documents so served, or by explaining what they are, or by verbally advising the person sought to be served as to what he or she should do with the papers." Martin v. District Court In and For Adams County, 150 Colo. 577, 580 (Colo. 1962).
Town of Minturn v. SensibleHous. Co., 273 P.3d 1154, 1156 n.2 (Colo. 2012) (citing Martin v. Dist. Court, 375 P.2d 105, 106 (Colo. 1962)). This case provides no support for Plaintiff's argument.
"(1) Upon a natural person over the age of 18 years, by delivering a copy thereof to him, or by leaving a copy at his usual place of abode, with some member of his family over the age of 18 years, or at his usual place of business, with his stenographer, bookkeeper, or chief clerk; or by delivering a copy to an agent authorized by appointment or by law to receive service of process." He argues that the facts of this case fit the rule inasmuch as his affidavit proves that defendant's usual place of business is in Colorado, that Martin v. District Court, 375 P.2d 105 (Colo. 1962) holds that the position of secretary is synonymous with stenographer for purposes of Rule 4(e)(1), and that therefore service upon Julia Hoss, allegedly a "secretary of defendant" constituted proper service upon defendant under the rule. Defendant controverts these arguments.
"The exercise of concurrent jurisdiction is controlled by the principle of priority, which is sometimes referred to as the rule of exclusive concurrent jurisdiction." Estates in Eagle Ridge, LLLP v. Valley Bank Trust (Eagle Ridge), 141 P.3d 838, 844 (Colo.App. 2005) (citing Utils. Bd. v. Southeast Colo. Power Ass'n, 171 Colo. 456, 468 P.2d 36 (1970); Martin v. Dist. Court, 150 Colo. 577, 375 P.2d 105, 106 (1962)). This rule is based on the public policy of preventing contrary decision in two courts which share concurrent jurisdiction and avoiding duplicative or multiple lawsuits.
This rule requires that the copy of the summons and complaint be delivered' to the proper person, but clearly by its own terms 'does not require that this 'delivery' be accompanied by a reading aloud of the documents so served, or by explaining what they are, or by verbally advising the person sought to be served as to what he or she should do with the papers. Martin v. Dist. Ct., 150 Colo. 577, 580-81, 375 P.2d 105, 107 (1962) (applying former C.R.C.P. 4(e)(2)) (emphasis in original). Furthermore, the outcome here as to whether service was proper cannot be affected by Hermes's method of organization or lack thereof.
Other jurisdictions hold that such service is sufficient where the secretary or assistant is otherwise competent to accept service and does so. See, e.g., Martin v. District Court, 150 Colo. 577, 375 P.2d 105 (1962); Merrill Chadwick Co. v. October Oil Co., 725 P.2d 17 (Colo.App. 1986); A-Z Equip. Co. v. Moody, 88 Ill. App.3d 187, 43 Ill.Dec. 438, 410 N.E.2d 438 (1980); Psathas v. Catskill Regional Off-Track Betting Corp., 173 A.D.2d 1070, 570 N.Y.S.2d 407 (1991). Thus, we conclude that service of process on a secretary in a public corporation or agency is insufficient to constitute service on the public corporation or agency absent a clear showing that such individual was delegated by the corporation or agency to accept process.
This rule of procedure has several times been considered by this court. See Utilities Board of the City of Lamar v. Southeast Colorado Power Association, 171 Colo. 456, 468 P.2d 36; Martin v. District Court, 150 Colo. 577, 375 P.2d 105; Public Service Co. v. Miller, 135 Colo. 575, 313 P.2d 998; People v. Morley, 77 Colo. 25, 234 P. 178. However, such may not be considered in the posture of this case as it was not in any manner presented to the trial court as grounds for abating or dismissing the adoption proceedings.
It is familiar law that, once a court takes jurisdiction of an issue and of parties, it thereafter has exclusive jurisdiction of the subject and matters ancillary thereto. Martin v. District Court, 150 Colo. 577, 375 P.2d 105; Public Service Co. v. Miller, 135 Colo. 575, 313 P.2d 998; Louden Canal Co. v. Handy Ditch Co., 22 Colo. 102, 43 P. 535. The motion to dismiss should have been granted.