19 Utah 103 | Utah | 1899
This action was brought in Salt Lake County on October 27, 1897, by the appellant against the respondent for the purpose of obtaining permanent alimony under Chap. 33, p. Ill, Laws of 1896. The parties were married at Buena Yista, Colo., in July, 1881, and lived together in Colorado 'from one to three months. The complaint alleges that one child was born of- the marriage, who is now about 15 years old, residing with the plaintiff; that the defendant is and has been a resident of Utah for five years, and owns real estate and personal property in this State; that during the year 1883, the defendant willfully abandoned and deserted the plaintiff, and has continued
The defendant answered admitting the marriage in Colorado, July 1, 1881, but denies that the parties are now husband and wife; denies that the plaintiff is a resident of Utah; denies the desertion of the plaintiff, as alleged in the complaint; denies that the parties lived together as husband and wife to exceed one month from the date of the marriage; denies that the child was born of said marriage, and alleges that in August, 1881, the plaintiff deserted and abandoned the defendant without cause, and left the abode of defendant, and refused to return or live with him as his wife, and that such desertion continued until he was divorced from her in March, 1886; that on the 8th day of March, 1886, he obtained a decree of divorce from the plaintiff in the county court of San Juan, Colo., in an action in which the defendant herein was plaintiff, and the plaintiff herein was defendant; that said court had full jurisdiction in said case, and said decree was entered of record in said court dissolving the bonds of matrimony then existing between them, and released the defendant from any and all obligations growing out of said marriage relations; that said decree stands in full force, and has never been reversed; that the plaintiff had full knowledge and notice of said decree; that the alleged cause of action is barred by Sec. 3150, C. L. U., 1888; that the plaintiff is guilty of laches, and that the defendant in reliance upon said decree of divorce contracted a marriage, and is now the lawful husband of another woman.
Upon the hearing of the case it appeared that while the
Plaintiff attacks the decree and judgment awarding Frank Hoagland a divorce on the ground that it is void, and that the court had no jurisdiction of the subject matter of the action or the person of the defendant. The first ground alleged is that Sec. 485 of the statutes of Colorado, of 1883, provides. that, “in all actions for divorce, the .petition, or bill of complaint, shall aver that plaintiff does not ask or seek alimony in excess of the said sum of two thousand dollars, ” and that the complaint
Alimony is defined to be an allowance which a husband by order of court pays to his wife, living separate from him, for her maintenance.
The general statutes of Colorado, 1883, p. 398, Sec. 1098, in force at the time of this proceeding, makes provision for the allowance of alimony to a wife, but nowhere, so far as we can discover, makes any provision for the allowance of alimony to the husband.
The supreme court of Colorado, in the case of Meldrum v. Meldrum, 24 Pac. Rep., 1083, say that the wife alone can maintain an action for alimony. To the same effect are Sommers v. Sommers, 39 Kan., 132; 2d Am. & Eng. Ency. of Law (2d ed.), p. 92.
So far as we are able to ascertain, the husband is not entitled to alimony, or an allowance out of the property of his wife, except as provided by statute. It is evident, therefore, that the section of the statute referred to applies to cases commenced by the wife for divorce and alimony, and not to cases commenced by the husband, as it would seem to be wholly unnecessary for a plaintiff in a complaint to relinquish a thing which he could not recover in any event. We are of the opinion that the statute refers to that class of divorce cases where alimony can legally be recovered.
Defendant, Frank Hoagland, made and filed his complaint in San Juan County, Colo., November 5, 1885, to procure a decree of divorce from Maggie Hoagland, the plaintiff herein, on the ground of desertion. Summons was duly issued on such complaint, and the sheriff made return that he was unable to find the defendant in his county.' The plaintiff made an affidavit for an order of publica
The appellant contends that the clerk of the court should grant the order of publication under Sec. 44 of the Colorado statute, and that as no order was made or filed, as appears of record, the publication of the summons was without authority, and the judgment, therefore, invalid.
Appellant also contends that the publication was commenced, as appears by the publisher’s affidavit, November 7, while the affidavit for publication was not filed until November 9, as appears from the jurat.
At the time the suit was commenced and the decree obtained, both the parties resided in Colorado, and were subject to its laws. The judgment was a domestic judgment, rendered by a court of record of the State of the domicil of the parties. The judgment is attacked collaterally. In a collateral proceeding the question of the jurisdiction of the parties can only be determined by an inspection of the record. Amy v. Amy, 12 Utah., 278.
The judgment rendered in this case in Colorado upon substituted service of process, such as the law has authorized, should be considered as standing in the same situation, and as binding between the parties in this and every other State, as a bar to a second suit, and as conclusive upon the defendant, as it is in the State where it was rendered. 2 Black on Judgments, Secs. 926, 927.
The county court of Colorado is a court of record, and is invested by the statutes of that State with jurisdiction in divorce cases. Mills Anno. Code, Sec. 1054; Coon v. Regdon, 4 Colo., 279.
This being so, the record is conclusive on all questions of fact when collaterally attacked. Yan Fleet on Collateral Attack, Sec. 576.
The question then raised is what constitutes the record in this case ?
By the provisions of Sec. 210, p. 82, Civil Code of Colorado, 1877, in force when this judgment was entered, it is provided, that in case the complaint is not answered by any defendant, the summons, with the affidavit or proof of service, and the complaint, with a memorandum indorsed upon the complaint that the default of the defendant in not answering was entered, and a copy of the judgment, shall constitute the judgment roll.
It will be seen by the recitals in the decree, that it appeared to the court that the summons was duly served by publication, under an order of the court, in the manner provided by law, and that the default of the defendant was duly entered of record. These recitals in the record and decree of the court import verity and are of binding effect, and must be so treated for all purposes of this collateral attack upon the judgment. Thus, in this case, it must be taken that the court acted upon proper evidence, ascertained and set forth in the record the facts that the defendant in the proceeding was duly served by publication under the order of the court, and such adjudication is conclusive when the judgment is collaterally attacked. The affidavits for publication and the order of the court of general jurisdiction issued thereon not being a part of the record or judgment roll, the court will not look into the record to ascertain whether or not they were properly made or filed, when the judgment is collaterally attacked, and nothing appears from the record to dispute the recitals in the decree showing jurisdiction.
But it is claimed by the appellant that Sec. 10, p. 82, of the Code of Civil Procedure of Colorado, of 1877, has
In the case of Amy v. Amy, 12 Utah, 310, it is said:
“After determining that the court has jurisdiction of the subject-matter, the next inquiry is, did it have jurisdiction of the person? In collateral proceedings this question can only be determined by an inspection of the record. If it is silent, then the presumption follows that what ought to have been done, was not only done, but
We think there was nothing in the judgment roll or the record contradicting the recitals in the judgment; and that the absence of the order of the court for publication in no manner vitiated the decree rendered in the case; and it is to be noted here that notwithstanding the certificate of the clerk that the papers above referred to were the only ones filed in the case, there was nothing requiring the filing of the order of publication, and the certificate is not incompatible with the presumption of the existence of said order duly made by the court.” 1 Black on Judgments, Sec. 273; 2 Black on Judgments, Sec. 886; Harris v. Lester, 80 Ill., 307; Naylor v. Mettler, 11 At. Rep., 859.
This reasoning also applies to the alleged premature publication of the summons. The record shows that the notice was published for four consecutive weeks after the filing of the affidavit for the order of publication. We find nothing in this to dispute the recitals in the decree. On this subject reference may be had to the case of Calvert v. Calvert, 24 Pac. Rep. (Col.), 1049.
Many other questions were raised and discussed by counsel bearing on the case, but inasmuch as we find that the decree of divorce granted in Colorado was valid, it is unnecessary to refer to them or discuss them.
The judgment of the district court is affirmed with costs.