*1 if good merits, judgment defense set aside for prima defense, if such a facie, his affidavit showed notwithstanding apt application time, made his See had.” the defense was counter affidavit that 912, 148 Pac. Bank, Corp. 403, 59 Colo. v. First Nat. Richards Kesselring, 295, Denver v. Industrial Kesselring (2d) Mr. Chief case the late In the P. 767. opinion, in the course Justice Adams wrote defense, stated а meritorious thereof said: “The affidavit judg- duty so, it was the of the court to vacate try motion to merits, the case on its ment and when apt time.” The record that effect was mаde in whole require in error to considered, it is fair to showing, challenge meet the and failure tendered require plaintiff it would be unfair to error. may judgment, vacate its recall the trial That thereon, cancel the sheriff’s issued execution writ of thereof, fix a reasonable time within made virtue sale advised, answer as which proceed regular lеt the course, be reversed. 15,029. No. v. McWilliams.
McWilliams 966) (132 [2d] P. Rehearing 11, January December 1942. denied 1943. Decided 1*74 *2 Holland,
Mr. E. V. for in error. plaintiff Emery J.Mr. Chilton, for defendant in error. En Banc. Goudy
Mr. Justice the оf the court. delivered The for our consideration presented to she al- payments involves the of wife right her the of a are due under leges provisions the husband that agrеement; asserting decree, in a final in an merged had been agreement action for divorce court of the county City Denver, court jurisdiction that County $2,000. limited being During in divorce action to such divorce and before entry entered into a agreement written parties they to and settle for whereby attempted compromise all time “all differеnces of a nature.” This monetary alia, inter that provided, agreement to should sum of dollars pay fifty per long remarry, so also month, as she should not provided: hereby agrеed by “It is and between en- hereto that the event a decree should be subject pending, tered the divorce suit now specifically Court, the rules of refer said decreе shall incorporate agreement.” to and therein these articles of county by interlocutory entered Adjudged following: “Ordered, court contains the entered into herеtofore Decreed that the in evidence hereto', introduced between the same ‘A’ herein hereby as Exhibit and identified approved of this and made a the court as to no information decree.” The decree itself contains provisions agreement. regis- Subsequently, paid into the defendant in error try county money $2,000, in excess of *3 wherеupon, application in his therefor accordance with the court “I do entered an order in which it was said: necessary proper not think it is either or the court fоr rights to determine the con- under this proper tract as I such. think all that is for us to do namely, is to determine the status of our interlocutory decree, later became final. It will money provisions be the order of the court that fully thereof are Thereafter, satisfied.” defendant in declining payments, plaintiff to make further in agreement error instituted an аction on the alleging in the district court that defendant in error had payments asking judg- in defaulted for months, two alleged ment for one hundred dollars to be due there- proceеding under. In this latter defendant in error filed ground a motion to dismiss on that the district court jurisdiction had no in the matter for the reason that it already adjudicated county had been in the сourt. After hearing motion, this the court announced that it sufficiently premises, was not in advised reserved its ruling, and ordered that defendant in error file an Answering answer. course, due in error parties, hereinbefore agreement
alleged of part the divorce made a had been mentioned, county all had satisfied 'court and that the order matter аrising that this contract; of said out demands county adjudicated court completely in the had been jurisdiction in the court had no and that the district agree- replying, denied matter. Plaintiff that decree; the divorce ment been made a had county demands satisfied all the order of the arising court agreement; had been the matter that out of adjudiсated; without court was and that the district pleadings jurisdiction. considering and ar- these After parties, gument respective the district of counsel for interposed granted to dis- the motion theretofore opinion interpretation of our miss, accordance with its (2d) 964, P. Gavette, v. agreement the set- held, that an for wherein we where and made in, tlement of is of, final decree in divorce independent have status and ceases to an merged in the decree of the trial court.
The rule announced in the Gavette сase is a correct inapplicable law, statement of the to the but in our present proceeding. only point specified for reversal is: “The trial in its court committed error finding to the effect the written settle- * * * merged interlocutory ment and final county By specifi- decree of divorce in the court.” this *4 question upon cation we are confronted with a alleging there is a clear-cut issue, property for a settlement made denying a the final decree, with in allegation. the opinion that the rule annоunced are of the
We (2d) Kastner, 280, 290, Colo. 9 P. in Kastner v. presented. there the issue We held: decisive of approval ‘property “The mere reference to and findings sеttlement,’ contained of fact and financial court, the final decree of the and conclusions of law and operate independent contract did not to make preliminary parties of, as, enforceable a and therefore, no court was, final decree of court. There permanent temporary ali- order reference to or with * * mony, support money, or having stipulation The been and having approved by the court, but the terms thereof not rights been set forth in divorce, the decree of parties upon upon decree, rest contract and not obliga- rights and are contractual and not decreed and tions. rights obligations
If the entered into a set action, have to a divorce who upon agreement, therein, tlement to rest are obliga any agreement as to those then fully specifically set forth in tions shоuld imposed upon, decree, in the duties order that rights granted parties can be ascertained from to, the the decree itself. and the cause remanded is reversed any, if shall that further
with instructions expressed. herein conform with the views Bakke Mr. Justice dissents. Bakke,
Mr. Justice dissenting. agree opinion majority I cannot with the marriage It this case. holds sеttlement contract entered into between the in the was not separate that, therefore, suit upon specifically it. The be maintained also states that the rule аnnounced the case of Gavette v. (2d) Gavette, 964, 88 P. is a correct state- ment of law. propose
I that in so far show as there was incor- poration of the settlеment contract in the decree in the incorporation there case, and as of the con- *5 legal can distinction case, no in the in this
tract be drawn. request to have in this case of the part order and the court’s
contract made a quoted opinion. thereon in the is alia, supra, contract, inter In the case, Gavette agreed upon following: It contained thе “7. entry Findings Law of of Fact and Conclusions terms, in the covenants case, aforesaid divorce herein and made conditions hereto shall be embodied part Findings of Law оf said of Fact and Conclusions part of said and be made a court, of the final decree of divorce agree- finally upon as this entered herein.” Based follows: mеnt, the final decree contains an order as by adjudged “And it is decreed ordered, further by court that the heretofore entered into settling concerning between in this causе themselves, all matters of as between including support parties’ maintenance and hereby approved by minor child is the court and conditions, covenants and terms thеrein set forth are as in this decree reference.” of the contract were terms
It will noted either, case, in the Gavette not in the decree set forth incorporation, reference, and it would seem more definite and at bar is in the case contract here, case, because order certain in the than hereby the same ‘A’be and noted, is, as approved by that “Exhibit this decree.” made a the court and (2d) 280, 9 P. Kastner, In Kastner v. made a that the contract be there no order ap- simply “reference to and the decree. There was proval the same. of” on some case should be reversed
It be that this surely opinion. ground, not on the one set out but