72 Colo. 184 | Colo. | 1922
delivered the opinion of the court.
The plaintiffs in error filed a petition in the county court of Rio Grande county in which they challenged the
No defect is pointed out in the service of process, the procedure, the findings of fact, or the form of the decree, but it is claimed that “no issue was tendered by the complaint” in that divorce action.
The complaint, it is admitted, was sufficient in all matters outside of the allegations which were intended to state a statutory ground for divorce. It is claimed that no ground is stated. In this connection, the allegations were as follows:
“That since the said marriage the said defendant, disregarding her marriage vows has been guilty of extreme and repeated acts of cruelty toward this defendant.”
Taking the- complaint alone, it seems certain that the pleader intended to charge defendant with cruelty toward plaintiff, and that the use of the word “defendant” at the close of the paragraph is a clerical error. It is to be presumed that evidence was adduced to support the allegations intended and that the findings of fact were in accordance with the evidence. The findings of fact in that case, which are a part of the record, are to the effect that defendant has been guilty of extreme and repeated acts of cruelty toward plaintiff. The whole record, therefore, shows that the use of the word “defendant” in the complaint was a clerical error. The complaint may be read as if the word “plaintiff” had been used instead. 23 Cyc.
The plaintiffs in error have filed a supplemental brief in which they contend, in effect, that the complaint does not state facts sufficient to give the court jurisdiction to grant a divorce, because it fails to allege that the parties have lived separate and apart for the period of at least one year immediately preceding the filing of the complaint. Such an allegation was required by section 9, chapter 74, S. L. 1915. That provision has been repealed by chapter 65, S. L. 1917, and under it, the present law, a divorce may be granted on the ground of cruelty without allegation or proof that the parties have lived separate and apart. It covers the whole subject-matter and was intended as a substitute for the former statute, and for that reason must be deemed a repeal of the earlier act. 36 Cyc. 1078.
There was no error in refusing to hold the decree void, or in denying the relief asked by the petitioners below.
The judgment is affirmed.