30 Colo. 499 | Colo. | 1903
Lead Opinion
delivered the opinion of the court.
For several years prior to the filing of the complaint, the plaintiff and defendant resided in the county of Weld, in this state. For about two years prior to the middle of November, 1899, they lived on a farm in said county, where they" were both employed. On the last-named date, the husband; being dissatisfied for some reason, made overtures to his wife to leave the farm with him, but upon her refusal to do so, he left, leaving his wife on the farm. About the 10th of December, 1899, the wife went to
Three questions are presented for our consideration :
1. Whether a jury of three is a proper jury for the trial of an action for divorce, unless the opposite party consents thereto.
2. Does a defendant, by proceeding to trial,
3. Did the evidence in support of the plaintiff’s complaint warrant the finding of guilty!
We are of the opinion that the plaintiff has failed to establish the allegations of her complaint, and we shall therefore not determine the questions raised relating to the jury and the residence of the plaintiff. We are satisfied that the court should have directed the jury to return a verdict of not guilty. The plaintiff and defendant depended upon* their, own,labor for their support. In the fall of 1898 the plaintiff and defendant mutually agreed to live upon the farm of a man named Cope, within a few miles of New Windsor, Weld county. The plaintiff’s testimony upon this subject is as follows: “In October, 1898, I left New Windsor and went to a ranch one and a half miles, to a man named Cope. The arrangements were that we were to furnish part of the provisions and Cope was to furnish the other things, such as flour, potatoes, milk, butter and house rent. This arrangement did not last very long, as Mr. Branch did not live up to his agreement, and Mr. Cope Was compelled to supply the provisions, and about the 1st of March another arrangement was made with Mr. Cope, who had employed more men, and he agreed to furnish all the provisions, my work to offset Mr. Branch’s, the children’s and my board.”
Upon cross-examination, she says: “We moved to New Windsor about 1897. At that time Mr. Branch worked in the creamery, and worked steadily for a few months. He was manager for a man in Denver. We lived in a frame house of five rooms, which Was comfortably furnished. He provided common every-day food and enough of it; the child was clothed half-way decently — we only had one then— While I had what clothes mother gave me, fairly re-
“Q. Why did he w!ant to leave Cope’s? A. I don’t know.
Q. Did he ever tell you why he wanted to go away and take you away? A. No, sir.
Q. Did he have any private talk with you to tell you why? A. We have often talked to each other that it was a snap, and if we could stay another year, we would get some money.
Q. Was it a snap? A. It was, fortunately. We were doing well at Cope’s; Mr. Cope furnished the provisions.”
The arrangements mentioned lasted until about the 1st of March, 1899. Branch and his wife, by their joint efforts, furnished the family with sufficient provisions. After the 1st of March, another arrangement was made, and the defendant was to farm land rented to him by Cope; but for some reason there was a failure of the crop and he did not realize as much from its sale as he had anticipated. These people apparently lived together in perfect harmony until a month or two before the husband left. It is not necessary to consider the reasons he gave for urging his wife to leave with him, suffice it to say he was dissatisfied, and offered to provide rooms in New Windsor, but his wife declined to go with him.
The testimony, viewed in the most favorable
The judgment is reversed, with directions to dismiss the cause.
Reversed.
Rehearing
On Rehearing.
delivered the opinion of the court.
The case was reversed for the reason, as stated in the opinion, that the plaintiff had not shown by her own testimony that her husband had failed to make reasonable provision for her support and the support of the family for the period of one year prior to the commencement of the action. The testimony showed that the husband had made provision for the support of his family up to the 1st of March, 1899; that up to the 1st of March, 1899, the parties lived in perfect harmony, and that it w*as not until after the 1st of March, 1899, that complaint was made by the wife that the husband was not making a suitable provision for her support. The court therefore held, that even though the defendant had perhaps not made a reasonable provision for her support or the support of the family after the 1st of March, 1899, to the commencement of the action, she had failed'to show (the suit having been brought in November, 1899) that there had been a failure to support for the period of a year prior to
The defendant objected to a jury of three, and his objection was overruled. The objection should have been sustained and a jury of six impaneled to try the cause. We hold that unless the parties consent thereto, a jury of three cannot lawfully try a suit for divorce. We must not be understood as holding that in case of default, where an attorney has been appointed by the court to represent the absent defendant, the attorney so appointed can consent for the defendant to have the cause tried by a jury of three.
The court should have determined the question of residence of the plaintiff. A motion having been made by the defendant to dismiss the cause because it did not appear that the plaintiff was a bona fide resident of Pitkin county, it should have been sustained if the court was of opinion that the plaintiff was not a bona fide resident. Causes can only be brought in the county where the plaintiff resides or
Counsel have suggested that the opinion be modified, and that the case be remanded with directions for another trial, and not with directions to dismiss the cause. There is no reason for prolonging this litigation. The cause, if remanded, must be dismissed by the court because of the fact that during the pendency of the case here the appellee remarried; and, having remarried before her judgment of divorce became final, she has violated the marriage obligation, and is not entitled to a divorce.
Counsel stated in open court that the appellee married more than a year after the granting of the decree from which an appeal was taken, but the fact that a year elapsed before she Was married does not affect her status. The appeal suspended the judgment for all purposes, and she could not lawfully marry again during the pendency of the appeal.
We are not unmindful of the fact that the result of this judgment is of serious consequence to the apellee and the man she married, but they should have thought of the consequences before taking the step. ■We are of opinion that the court has the right, in di
The petition for rehearing is denied.
Mr. Justice Gabbert does not concur, being of opinion that the petition for rehearing should be granted and the judgment affirmed.