52 Colo. 601 | Colo. | 1912
delivered the opinion of the court:
Three questions are presented: First, had the court and referee power to proceed with the reference while the appeal from the divorce decree was pending in the supreme court? Second, could the court upon its own motion, refer this issue to a referee? Third, is the judgment void because indispensable parties were omitted ?
While the divorce case was pending in the supreme court, the, district court had no jurisdiction to proceed until the appeal was determined. Plaintiff was not entitled, to a judgment for permanent alimony until she obtained a divorce, which she could not have so- long as the appeal from the divorce decree was pending. Whether or not she would obtain a divorce, depended on the result of the appeal, the perfecting of which suspended the right of the district court to proceed while it was pending. Suspending the divorce, decree by appeal, suspended the right to try the issues raised by the supplemental complaint and answer, or to fix the amount of alimony. Reserving in the decree the right to fix the amount of alimony at a future time, did not give the court jurisdiction to determine that question while the divorce decree was suspended by an appeal to the supreme court. The lower court could not restrict the effect of the appeal by a reservation in the decree. As long as the appeal was
The new defendants did not consent to the reference, and the court had no authority under the code to enter the order upon its own motion. Such a course was in direct violation of the provision of the code which expressly says that before the court can appoint a referee with such power, the parties must agree to. the appointment, and the agreement must be filed with the clerk
*607 “For value received, I hereby sell, assign and transfer to Marcelino Archuleta and Fidel Archuleta, the shares of stock within mentioned, and. hereby authorize the transfer of the same upon the books of the company.
Witness my hand and seal this 14th day of October, 1904. '
J. P. Archuleta.”
That on the same day it was transferred to them by issuing a new certificate, No. 20; and these shares of stock .now stand on the books of the company in their names, evidenced by certificate No. 20. They were not made parties, had no notice of, and took no part in the suit. They were given no opportunity to defend their title; but notwithstanding this, the court, without their presence and without notice, adjudicated their rights, and declared in its final judgment they had no title to- this stock, and ordered the company to cancel certificate No. 20, and issue new certificates in its place for this stock, to Mrs. Archuleta and her attorneys in payment of alimony and counsel- fees. This judicial order is void, because : First, it deprives these stockholders of their property without due process of law. Second, they were necessary and indispensable parties before -any judgment of this kind could be entered-. '
The federal constitution provides:
“Nor shall any state deprive' any person of life, liberty or property, without due process of law, nor deny t oany person within, its jurisdiction the equal protection of the laws.”
The state constitution provides:
“That no person shall be deprived of life, liberty or property without due process of law.”
The stock standing in' the names of these stockholders could not be arbitrarily confiscated by an order of
Lack of indispensable parties, presents for consideration in another form, the question of the court’s authority to enter any judgment affecting this stock. It was impossible for the court to make an order determining the ownership without prejudice to the rights of these stockholders; therefore, under our code, the court had no jurisdiction to proceed without them.—Allen v. Tritch, 5 Colo. 222; Snyder v. Voorhees, 7 Colo. 296; Pollard v. Lathrop, 12 Colo. 171; Seymour v. Fisher, 16 Colo. 190; Homestead Co. v. Reynolds, 30 Colo. 330; Peck v. Peck, 33 Colo. 421; Bank v. Davidson, 7 Colo. App. 91 ; Williams v. Bankhead, 86 U. S. 563; Mallow v. Hinde, 25 U. S. 193; Calhoun v. Fletcher, 63 Ala. 574; Theurer v. Brogan, 41 Ark. 88.
The code provision, however, is only declaratory of the immutable law. It would be the same without a code. The court could enter no judgment, ordering the cancellation of this certificate and a transfer of this stock, without affecting the rights of these stockholders. They were therefore necessary and indispensable parties by reason of natural justice, and any judgment entered without them, so far as it affects this stock, is void not only as to them, but also as to the parties before the
Reversed and remanded.
Decision en banc.