Sedgwick v. Sedgwick

50 Colo. 164 | Colo. | 1911

Mr. Justice Garrigues

delivered the opinion of the court:

The principal points involved are: First, the applicability of the injunction statute to divorce actions. Second, Must the plaintiff in a divorce action be a citizen of the United States? Third, where there are three statutory grounds of divorce separately alleged as distinct causes of action, and the verdict is general, namely: that the defendant is guilty as charged in the complaint, if the evidence is insufficient to support any one cause, or if the court erred in admitting 'or rejecting evidence as to any one cause, or erroneously instructed the jury as to any one cause, or if there is reversible error as to any one cause, Must the action be reversed as a whole?

1. Our injunction statute provides:

“In the event the temporary restraining order shall issue without notice and it shall afterwards appear to the court, upon any hearing or trial of said matter, that the emergency alleged therefor did not exist, or, existing, was brought about by the act or omission of or for the plaintiff, or by his knowledge, the court shall find and enter judgment accordingly, and shall, also, dismiss the complaint without respect to the merits thereof, and shall, also, summarily enter judgment on said emergency bond for the defendant and against the plaintiff and his sureties aforesaid, and issue execution therefor.”

It is claimed under this statute, the trial court erred in not dismissing the complaint. The claim is wrong, for the simple reason counsel did not ask to have it dismissed. If counsel wanted the action dismissed upon a hearing of ‘ ‘ said matter, ’ ’ they should have called it to the attention of the court and had it.heard. “Said matter,” does not refer to the principal suit, but to the issuing of the restraining order. This is not to be construed as implying that the code provision on injunction is applicable to divorce actions. Whether the district court possesses inherent common-law power to issue restraining orders in proper cases, in divorce actions, without notice and without bond, we express no opinion.

2. ’ Where- the complaint contains separate causes of action, each based on a different transaction, there should be a separate verdict for each. But where the complaint contains only one cause of action based on one transaction; although set out in different counts, the verdict may be general, and ordinarily will be good if the proof supports any count. This rule applies to both civil and criminal practice.

It is contended, in a divorce action based on more' than one statutory ground, where the verdict is general, the judgment will be set aside if there is reversible error in any one of the causes of action, because it is impossible to say upon which the verdict is based. We take no issue with this contention. Counsel in' a divorce action upon a number of statutory grounds, befóte the case goes to ' the jury, should dismiss on all save such as they desire a verdict. They are taking' an Unnecessary risk upon a general verdict, where different causes of action are submitted to the jury. Applying this doctrine to said' second cause of action, drunkenness,' it is contended there was no proof of plaintiff’s residence and citizenship of Colorado, one year prior to the commencement of his action.' The evidence shows he was born in England and there is no evidences Of naturalization, therefore, it is argued, his citizenship being once established, the presumption is that it still continues. And, it is said, not being a citizen of the United States, be conld not be a citizen of Colorado, and hence could not have been a citizen for one year prior to the commencement of said action; therefore, could not obtain a divorce upon the ground of drunkenness. So, the verdict being general, the whole action must be reversed. The evidence sufficiently shows his residence and habitation in Colorado many years prior to the commencement of the divorce action. This state had long been in good faith his genuine home and domicile; he had no other residence. He contracted said marriage relation in this state five years before bringing said action, and when he brought it, he was living within and subject to the jurisdiction and laws of Colorado. This made him a citizen of the state within the broad meaning of said divorce statute. The intent of the law is said to be its spirit. The intent of this statute was to prevent non-residents of the state from establishing a temporary residence here for the purpose of obtaining a divorce. Where an alien makes the state his home in good faith, and has no residence anywhere else, its courts are open to him to obtain a divorce on proper grounds. — Cairnes v. Cairnes, 29 Colo. 261.

It is further contended that two witnesses did not swear to his residence. True, no two witnesses, nor one, for that matter, swore in answer to' any direct question, that he had resided for a year prior to the commencement of said action, in Colorado. But it is the effect of what witnesses say that constitutes evidence, and the effect of the testimony is that plaintiff had lived in Colorado for many years prior to the commencement of said action. If it is true, as contended, that he failed to prove 'this by any other credible witness than himself, still, the defendant when a witness, supplied the proof by testifying to his residence. Surely counsel wilí not contend that his client was not a credible witness. No motion was made on this account to dismiss, as to this cause,'at the conclusion of plaintiff’s case. In any contested case, if the whole evidence, no matter by whom introduced, supports the verdict, the case will not be reversed because the defendant supplied a missing-part of the plaintiff’s proof.

3. It is further contended that the evidence fails to show that she was an habitual drunkard for the space of one year prior to the commencement of the action. Upon this, the evidence was conflicting-, and the jury determined the conflict against defendant.

4. It is also assigned as error, that extreme cruelty cannot be based on drunkenness. We agree that mere proof 'of drunkenness cannot establish cruelty. Habitual drunkenness is a separate statutory ground for divorce, and a charge of extreme cruelty cannot be grounded upon or established by drunkenness. Drunkenness, to constitute a ground for divorce, under our statute, must be habitual and must have existed for a year prior to the commencement of the action. But when one, while drunk or drinking, says or does things amounting to extreme cruelty, the fact that he was drinking would not defeat a divorce case based upon such extreme cruelty. If drinking or being drunk is interwoven with acts of cruelty or even is the cause of them, it cannot be used to defeat a divorce action based on cruelty because habitual drunkenness for the-space of one year is a distinct ground of divorce. Our statute provides that drunkenness shall not excuse any crime or misdemeanor whatever, and neither do we think it excuses any acts of cruelty. Affirmed.

Chief Justice Campbell and Mr. Justice Musser concur.

Decided March 6, 1911; rehearing- denied April 3, 1911.