| Colo. | Dec 15, 1881
This is a motion to dismiss the writ of error. The points mainly relied upon in support of the motion are the want of proper parties as defendants in error, and that a writ of error does not lie in a case of this nature.
This writ was sued out by the plaintiff in error to reverse a decree of divorce obtained against her at the June term, 1811, of the county court of Larimer county^ by her former husband, John Arthur, since deceased.
The writ of error describes the plaintiff in error as Abbie A. Arthur, now Abbie A. Israel, and the scire facias commands the officer charged with the execution of the writ to summon James B. Arthur, administrator of the estate of said John Arthur, deceased, as defendant in error.
If a decree of divorce affected the marriage relation only, there would be great force in the argument; but when it is considered that the decree in this case, as in other cases, affects the property rights of the parties as well as their - marital rights, it would seem that the same reasons exist for determining its validity as in civil cases • generally, notwithstanding the death of one of the parties, and regardless of the fact that the primary relief sought by the bill and afforded by the decree has been confirmed by death, whose decree is irrevocable.
An examination of the authorities cited on the argument do not appear to support this position of counsel for defendant in error. The authorities agree that the decree may be reviewed, differing only as to the mode of review.
In the case of Watson v. Watson, 41 How. Pr. 240, it was attempted by motion in the court below, with notice to the administrator only, to set aside a decree of divorce after the death of the plaintiff who obtained it, on. the ground of fraud and irregularity. An appeal was taken from the order denying the motion to the supreme court. That court held that relief could not be obtained on motion to set aside the decree, and suggested a bill of review, bringing in the heirs at law, and others interested in decedent’s real estate, as well as his representatives.
- The- decree in that case was entered in 1863, the plaintiff died in 1812, and the motion to set aside the decree
The writ of error in New York having been abolished in civil cases by the code, it is not apparent that any ■other remedy than that suggested by the court existed in such case.
The supreme court of Michigan held, in Shafer v. Shafer, 30 Michigan, 163, that an appeal lay from a decree of divorce after the death of the plaintiff, the appeal having been taken within the time allowed for appeals in chancery cases. Notices were served in that case on the solicitor of record for the complainant in the court below, and the administrator. The court held that, before the appeal could be brought to a hearing, the ■proper steps must be taken to bring in, as parties, the ■representatives of the deceased complainant, and his heirs at law.
The case of Wren v. Moss et al. 2 Gil. 72, is similar to the case at bar, except that the executor, and all other persons interested in the estate, were made parties.
The husband obtained a decree of divorce and died. The widow then brought the'case before the supreme court for review upon a writ of error. It was objected that a writ of error did not he in such a case, for the fol-' lowing reasons: because by death of one of the parties the suit abates as to the subject matter; if reversed, it cannot be retried; also, that error does not lie against those interested only in the consequences, but not in the subject matter of a suit.
It was held that the decree could be reviewed upon the writ of error, or, in a proper case, upon appeal; but that to authorize the latter proceeding, the title to realty must be involved, or the decree be for the sum of $20, besides costs.
The jurisdiction, in this class of cases, is supported both upon principle and authority. It is likewise provided by art. VI, sec. 23, of our constitution, that “writs
Eespecting the objection that proper parties have not been brought in, we think the objection well taken.
The plaintiff in error has caused only the administrator of her deceased husband’s estate to be summoned as defendant in error. While by all the authorities he is a proper party, it is clear that the heirs at law are not only pi’oper but necessary parties.
No showing has been made here, on either side, that no heirs at law exist, or that such persons, or others, interested in the estate or judgment do exist.
We are of opinion that the proper practice in all cases where the record does not disclose the names of persons who should be made parties to the proceedings in error, is for the plaintiff in error, by himself or attorney, to file with the clerk of this court an affidavit setting forth the names of all persons, so far as known, whose interests would be affected by the proceedings, or who are necessary parties thereto. In addition to this, a praecipe should he filed directing the clerk to issue a scire facias to hear errors, to the persons therein named as defendants in error.
This practice would place the responsibility for the regularity of the proceedings where it properly belongs, upon the plaintiff in érror. If objection should after-wards be raised that proper parties were not made, the names of the persons omitted, or improperly joined, together with the necessary facts to enable the court to pass upon the point, would have to appear in a like authentic manner.
A similar practice was adopted in Wren v. Moss et al., supra, which was approved by the court. Suggestions of similar import were made by Judge Caton in Napper et al. v. Short, 17 Ill. 119" court="Ill." date_filed="1855-11-15" href="https://app.midpage.ai/document/napper-v-short-6948564?utm_source=webapp" opinion_id="6948564">17 Ill. 119.
But while the objection as to want of parties must be sustained in the present condition of the proceedings, it is no ground for dismissing the writ of error.
The motion to dismiss the writ of error will be denied, and leave will be given the plaintiff in error to comply with the practice herein recommended, in respect to bringing to the knowledge of the court the names, of all persons who should be joined as defendants in error, when an alias scire facias may be ordered to bring them into court.
Motion denied.