5 Colo. 348 | Colo. | 1880
In the month of April, 1874, George I. Stebbins, since deceased, filed in the Probate Court of Jefferson County, his bill of complaint, praying to be divorced from his wife,
Such proceedings were had that in the month of June following, he obtained a decree granting the prayer of his bill. To reverse this decree the plaintiff in error, on the 8th day of May, 1879, sued out this writ of error.
A scire facias to hear errors, issued to Lucy J. Anthony as administratrix of the estate of George I. Stebbins, deceased, and as claiming to be the widow of said deceased. After the issuance of the latter writ, the said Lucy J. Anthony died, and the action has been revived against the present defendants in error, Scott J. Anthony and George F. Stebbins, as the only heirs-at-law of Lucy J. Anthony, deceased; the said Scott J. Anthony being also administrator of the estate of said Lucy, and likewise administrator de bonis non of the estate of said George I. Stebbins, deceased.
The first assignment of error questions the jurisdiction of the probate court to entertain an action for a divorce.
The point raised and relied upon by counsel for plaintiff in error under this assignment is, that a proceeding for a divorce is not a matter of equitable cognizance, but is purely statutory as to right and remedy, and that jurisdiction over this class of actions had not been specifically conferred by statute upon the court below.
While there are some adjudications to the effect that an action of divorce is a purely statutory proceeding, we think the weight of authority opposed to this view; and that the jurisdiction of the equity tribunals has generally been asserted and maintained in this country in the absence of statutes as well as under them.
Where statutes on the subject have been enacted, they usually provide that the chancery practice shall be observed in administering the law; and where divorces have been decreed for causes without the statute, courts of equity have assumed jurisdiction and afforded relief.
In support of the objection to the jurisdiction in equity,
This doctrine can be conceded only in cases wher.e the grounds or causes alleged may be purely canonical. Our chancery courts would not be authorized to grant divorces for canonical defects or impediments, as impotency, for example, unless it was also made a ground of divorce by statute. But where the grounds for which a separation may be decreed are fixed by statute, as in the present instance, the litigation is necessarily one of equitable cognizance.
The authority of the equity tribunals has also been recognized in cases of marriage void on grounds of fraud, duress, and lunaey, in the absence of statutory provisions by reason of the inherent jurisdiction of equity over these subjects. Fulton v. Fulton, 36 Miss. 519; Wightman v. Wightman, 4 Johns. Ch. 343; Crump v. Morgan, 3 Iredell’s Eq. 91; Ferlan v. Gojan, 1 Hop. Ch. 478; Clark v. Field, 13 Vt. 460; Fornshell v. Murray, 1 Bland’s Ch. 479, 483; 1 Bishop on Mar. & Div. Secs. 71-77; 2 Bishop on Mar. & Div. Sec. 291.
But it is not necessary in the present case to maintainthat a court having equity powers only, may, in the absence of express-authority, take cognizance of suits for divorce. By the amendhients to the organic act of March 2nd, 1863, the probate courts, together with the Supreme and district courts of the Territory, were vested with both chancery and common law jurisdiction, and with authority for the redress of all wrongs committed against the laws of the Territory affecting persons or property. Two limitations .were imposed by the act; one relating to the several courts named, and the other affecting the probate courts only. The first was that the jurisdiction of the
The increased jurisdiction conferred by this amendment was extended to the Probate Court of Arapalioe County by the legislative act of February 9,1870, and afterwards the same provisions were extended and made applicable to the Probate Court of Jefferson County, by the act of January 31, 1872.
The act provides that: “The Probate Court of the county of Arapahoe, in this Territory, shall hereafter have concurrent jurisdiction with the district courts of this Territory, in all actions, suits, and proceedings whatsoever, as well at law as in equity, when the debt or sum claimed, or the value of the property, whether real, personal, or .mixed, or all, or both, or the matter or thing in controversy shall not exceed the sum of two thousand dollars.”
If the effect of this legislation was to make the jurisdiction of the district and probate courts concurrent in all suits and proceedings at law and in equity, except those suits and proceedings which involved claims or property exceeding in value the sum of two thousand dollars, there is nothing left for construction, and proceedings for divorce not complicated with money or property claims exceeding the jurisdiction of the court, are as much within the cognizance of the probate court as of the district court.
If the jurisdiction does - not exist, it is not for want of inherent powers in the court to support it, but by reason of the peculiar phraseology employed in the statute to express the legislative will.
If the position were assumed and could be maintained, that the concurrent jurisdiction conferred by the act was limited to actions, the gist of which were money demands, and suits for the recovery of or concerning property, a very different result might follow.
A careful consideration of the statute, however, leads us to
The language of the statute is broad and comprehensive, indicating an intention to include in the concurrent jurisdiction all and every species of actions and proceedings within the limits imposed, which could be entertained by the district courts. Had such not been the intention it is only reasonable to suppose that other limitations would have been imposed, or that language would have been employed which would have clearly confined the jurisdiction to actions concerning money demands and property only.
Proceedings for divorce usually involve money and property rights, and although ancillary to the main proceeding, yet the value thereof, or the amount claimed as alimony, has been made the test of jurisdiction. Such was the case of Child v. Smith, 19 Wis. 558, which arose up,on a statute very similar to the one under consideration. The laws of 1860 conferred upon the County Court of Milwaukee County, “ jurisdiction in all civil actions, both as to matters of law and equity, equal to, and commensurate and concurrent with the Circuit Court of Milwaukee County * * * provided that the value of the property, or the amount of money in controversy in any action in said county court, exclusive of costs, do noPexceed twenty thousand dollars.” An action for divorce being instituted in the court under this statute, the county judge refused to entertain it, basing his refusal upon a want of jurisdiction to try and determine proceedings of that character. Upon mwndamus to compel the judge to proceed to the trial of the cause, the statute was held to vest the court with jurisdiction; but as the complaint contained no averment of the amount
Our own County Court act, passed since the adoption of the State constitution, contains a clause that — “ in all actions for divorce, the petition, or bill of complaint, shall aver that the plaintiff does not seek alimony in excess of the said sum of two thousand dollars.” .Gen. Laws 1877, Ch. XXIII. Sec. 2.
Section one of this act, defining the jurisdiction of county-courts, is certainly not more comprehensive than the corresponding section of the acts of 1870 and 1872. The phraseology is the same, and the language almost verbatim; but for the reference to actions for divorce in the second section, the same doubt might arise as to the authority of the present county courts to entertain such causes: This clause only aids the statute by showing the understanding and intention of the framers, for it contains no grant of jurisdiction, but on the contrary, an express limitation upon the powers already granted.
It should be borne in mind that this same statute couched in almost the same phraseology has been repeatedly enacted, and its provisions applied to different probate courts in the late Territory, from the year 1864 up to the adoption of the State constitution, and that the present county courts of the State rely upon it for their jurisdiction. When to these considerations are added the additional facts that these courts have entertained actions for divorce, and granted decrees therefor during a long term of years, and that under these decrees new rights have sprung up, and new relations have been formed, its validity should not be impeached upon technical grounds merely.
Another objection urged against the jurisdiction of the court below, is that the publication of notice to the defendant of the pendency of the action was incomplete, the first publication not having been made thirty days before the return of the summons. .
Section 8 of the Chancery Act (R. S. 1868, Ch. 23), re
The summons in this case was published for four consecutive weeks. The first publication was on May 2d, 1874, and the last on May 23d, 1874. The return day of the summons was June 1st. If, therefore, either the day of the first publication, or the return day, which was the first day of the court, may be reckoned in the computation, the service wa.s complete.
The correct rule for compiiting time prescribed in statutory enactments, has been a vexed question, both in England and in this country, as is apparent from the conflict of opinion in the reported cases.
The rule of the common law, and the rule generally adopted by the courts of the several States, is to include one day and to exclude the other, some courts including the first day in the specified time in the computatidn, and excluding the last day. Some courts exclude the first day, and include the last, while other courts vary their practice according to the phraseology of the statute under consideration, in some instances including the last day, and in other cases excluding both days.
Our entire chancery act, which includes the section now being considered, is almost a literal copy of Oh. 21 of the Revised Statutes of 1845, of the State of Illinois. And while we find no decision of that State construing this particular section, yet similar provisions of other acts requiring the same interpretation have been repeatedly construed, and a uniform rule in that State adopted upon this subject.
In the case of the publication of notice, the rule is to exclude the day of publication and to include the first day of the court. In case of personal service, either of process or notice, the day of service is excluded, and the return day, or the day on which the act to be performed included.
In Varin v. Edmondson, 5 Gilm. 270, the statute of 1833, concerning the publication of notice in case of foreign attach
It will be observed that this is substantially the same requirement as that of our chancery act.
The first publication in that case was on the 27th day of May, and the court commenced on the 25th day of July. Chief Justice Treat, speaking for the court, said: “The proper rule for the computation of time in such case is, to exclude the day on which the notice was first inserted, and include the day on which the term commenced.”
This decision was made in 1848, and the same rule of construction was adhered to in the case of Forsythe v. Warren, 62 Ill. 68, decided in 1871.
In Bowman v. Wood, 41 Ill. 203, the third and fifth sections of the Practice Act of that State, involving the same point, were construed. The third section made it the duty of the sheriff, when practicable, to serve all process “ ten days before the return day thereof.” The fifth section provided that if it was not served ten days before the return day, it might be executed at any time before or on that day, but in such case the defendant would be entitled to a continuance, and should not be compelled to plead before the next term.
The summons was served September 22d, returnable Oct. 2d. There being no appearance on part of defendant, a default was entered October 4th. On-the next day a motion was made to set aside the default on the ground that the service was not in time. Chief Justice Walker, in delivering the opinion of the court, said: “It is believed that the uniform construction given to the Practice Act, has been to exclude either the day on which the summons was served or the return day, and if there remained ten days, the service is held
Theseseveral acts, the Chancery Act, the Attachment Act, and the Practice Act were transcribed from the statutes of the State of Illinois and incorporated into our statutes as early as 1861. Not only the provisions concerning the publication and service of process, but the entire chapters on these subjects are substantially verbal copies of those statutes. These chapters were incorporated into our revision of 1868, and remained the law of the Territory and State of Colorado until the adoption of the Code in 1877. In adopting the laws of a sister Staté, the general rule is that the legislature adopts also the settled construction-given those laws by the courts of such State, and our legislature is presumed to have done so in these instances. It is believed, also, that our courts have always given the same construction to these several provisions, and observed the same rule of computation adopted by the courts of Illinois. Consequently the same reasons exist here as there for adhering to the precedents. No distinction was made there, nor the rule of construction varied on account of differences of phraseology in the various acts. The same rule was applied whether the requirement was as in the Chancery Act (R. S. 1815, Oh. 21, Sec. 8), that the first insertion of notice, “ shall be at least sixty days before the return day of such summons,” or as in the Attachment Act (ib. Cli. 9, Sec. 13), “ if sixty days shall not intervene between the first insertion of such notice, and the first term, of court, then the cause shall be continued until the next term of court”; or, as in the Practice Act (ib: Ch-83, Secs. 3 and 5), which requires all process to be served “ ten
The same general rule obtains in the courts of the States of Maryland, New York, New Jersey, Mississippi, Alabama, Pennsylvania, and in the Supreme Court of the United States. In the three courts last mentioned the rule appears to be to treat the day from which the term is to be calculated, that is, the first day, as inclusive. Garner v. Johnson, 22 Ala. 494; Thomas v. Afflick, 16 Pa. St. 14; Griffith v. Bogert, 18 How. 158, 163.
The return’ day, or first day of court, is included by the courts of Illinois, Mississippi and New York. Varin v. Edmonson, 5 Gilm. 270; Bowman v. Wood, 41 Ill. 203; Forsyth v. Warren, 62 Ill. 68; Douglass v. Cassedy, 25 Miss. 48; Columbus Turnpike Co. v. Haywood, 10 Wend. 423.
The Courts of Maryland and New Jersey appear to include one day and exclude the other, without particularly specifying which. Walsh v. Boyle, 30 Md. 262; Den v. Fen, 3 Halst. 303; Day v. Hall, 7 Halst. 204.
It is contended on behalf of plaintiff in error that our statute must be construed to give thirty clea/r days between the day of the first publication and the return day of the writ, because the requirement is, that the first publication shall be at least thirty days before the return day of the summons.
In support of this position, among other cases, we are cited to the case of Small v. Edrick, 5 Wend. 138. This case construed a statutory provision respecting a notice of trial, which was, that written notice of trial of every issue shall, in all cases, be served at least fourteen days before the first day of the court at which such trial is intended to be had. The court refer to and admit the general rule of law, that in the computation of time relating to the service of papers, one day is inclusive and the other exclusive, and say»such has been their ruling; but that in this instance a rule of court excludes the day of service, and the statute excludes the first day of court,
This case is distinguished from the case of Columbus TurnPike Co. v. Haywood, supra, where a different ruling was made on account of a slight difference in the phraseology of the statutes under which the two cases arose. In case of the Turnpike Co. the statute required a summons in a justice’s court to be served “ at least six days before the time of appearance.” In the former case the requirement was that notice of the trial of every issue should be served “ at least fourteen days before the first day of the court.” In the case of the summons in the justice’s court, it was. held that the return day of the writ was properly included in the computation of the six days; whereas, the return day, or first day of court, was excluded in case of the notice.
An opportunity was offered the Supreme Court of Pennsylvania to make an equally fine distinction on this point.
In Thomas v. Afflick, supra, the provision that no writ should be sued out, or served on a justice of the peace, until notice in writing given him “ at least thirty days before the suing out or serving the same,” it was held that the day on which the notice was served should be included in the computation. The court admitted that the ruling was in conflict with a former decision (Goswiler’s Estate, 3 Pa. 200) and remarked:— “We might plausibly distinguish it from Goswiler’s appeal, on on the ground of a difference between an act to be done before the expiration of so many days, and an act to be done after it; but the distinction would be a shadowy one.” The conclusion reached was that the decision in Goswiler’s appeal was not well considered.
Early v. Doe, 16 How. 615, was the case of a tax sale. The language of the statute in respect to notice was: “ That public notice of the time ajid place of the sale * * * shall be given hereafter by advertisement inserted in some newspaper published in said city once in each week, for at least twelve sue
It will be seen, however, that if the day of the first insertion be excluded, and that of the last included, the notice covered but eightj^-one days. By the usual rule of computation, the sale shonld have been made on the 18th of November.
The rule laid down by the same court in Griffith v. Bogert, 18 How. 158, and which it mentions as “ the general and popular usage,” is to treat the day from which the term is to be calculated, or termi/nus a quo, as inclusive.
The opinion in Fairbanks v. Wood, 17 Wend. 329, does not conflict upon this point with the rule adopted in 10 Wend. 423, but cites the latter as authority.
The point decided in Walsh v. Doyle, 30 Md. 262, was what constituted one day’s notice. It was the construction of an order of court which allowed each party to take testimony upon giving one day’s notice. Notice had been served on the 28th of December, and the testimony taken on the 29th. The court held the notice sufficient, and properly so held, as it was one day exclusive and one inclusive.
In discussing the question, the court cite the case of King v. Justices, 3 Barn. & Ald. 581, as authority for the rule that when a statute or rule of court requires notice to be given of a certain number of clear days, both the day on which the notice is served and the day of the proceeding must be excluded. It also referred to the case of The Queen v. The Justices, 8 Adol. & El. 173, where it was held that a statute requiring
The cases of Beemis v. Leonard, 118 Mass. 502, Sheets v. Selden, 2 Wallace, 190, and Good v. Webb, 52 Ala. 452, do net appear to be in conflict with what we understand to be tl e general current of modern authority upon this question, which is, that where a statute requires an act to be performed a certain number of1 days prior to a day named, or within a definite period after a day or event specified; or where time is io be Computed either prior to a day named, or subsequent to a day named, the usual rule of computation is to exclude one day of the designated period, and to include the other.
The point raised that the words 11 at least” prefixed to the number of days specified in a statute have the effect to requii e full, clear days, is not sustained by the weight of authority.
An examination of the cases cited, discloses the fact that many of them involve the construction of statutes which include these words, and that such statutes have been interpreted as if the words had been omitted. And in the case of The Queen, v. The Justices, 8 Adol. & El. 173, where it was held that fourteen days at least, mean fourteen clear, days, the ruling appears to have been regretted by the judges who made it, Li ttledal e, J., saying : “We abide by what has already been decided, though it appears to me that a day is a day, whet he r at least be added or left out.” Coleridge, J., concurred in the decision, adding—“ but on principle I should be of a different opinion.”
The courts of Georgia, Texas, some of the New York cases, several English decisions, and possibly other cases, conflict with the rule which we adopt, but we think it sufficiently supported by authority, and that it is correct on principle.
The first publication, therefore, was in time, and the service was complete.
The objection to the sufficiency of the proof of the charges . contained in the bill are based upon two propositions, first,
The first- proposition requires a construction of sections 1 and 5 of the act of February 11, 1870, entitled “An act relating to the competency of witnesses in civil cases.”
Section 1 provides “that no person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his -or her interest in the event thereof as a party or otherwise, or by reason of his or her conviction of any crime, but such interest or conviction may be shown-for the purpose of affecting the credibility of such witness,” etc.
Section 5 provides “that no husband or wife shall, by virtue of section one of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during the mandage, whether called as a witness during the existence of the marriage or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant, or where the cause of action grows out of personal wrong or injury done by one to the other, or grows out of the neglect of the husband to furnish the wife with a suitable support; and except, also, in cases where the litigation shall be concerning the separate property of the wife, in all of which cases the husband and wife may testify for and against each other in the same manner as other parties may under the provisions of this act.”
On behalf of plaintiff in error, it is contended that, so far as the present action is concerned, our statute does not change the common law in respect to the competency of husbands ai.d wives as witnesses for or against each other.
The first section is substantially the same as Sec. 1 of Wag-' ner’s Statutes of Mo. p. 1372, which was construed to render-husband and wife competent witnesses, when they are the opposing parties to a suit, to give evidence of matters m t
In construing this section the court say, in Moore v. Moore, 51 Mo. 118: “The language used is broad enough to embrace all persons who are parties to a suit, including husband and wife.” This opinion was affirmed in Berlin v. Berlin, 52 Mo. 151, wherein the following views were expressed in respect to the legal effect and design of this section: “It is true that husband and wife eo nomine, are not mentioned in Sec. 1 of the act respecting witnesses; but it would seem that a fair and reasonable construction would embrace them within its provisions. The act in question was evidently designed to work a complete change in the law of evidence, and to lay its foundations anew, not on the theory of the common law, that of human infirmity, but in. the ‘sanction of truth, probity, and personal honor.’ ” These rulings were afterwards cited with approval in the cases of Paul v. Leavitt, 53 Mo. 595, and Darrier v. Darrier, 58 Mo. 222.
■ We have been referred, by counsel for plaintiff in error, to several decisions which announce a contrary doctrine, but only one of them appears to be founded upon statutory provisions in anywise similar to either our own statute or that of Missouri.
The case of Gee v. Scott, 48 Texas, 510, holds that the act of May 10, 1871, of that State, declaring that in the courts of the State there shall be no exclusion of any witness in civil actions, because he or she may be a party to or interested in the issue to be tried, does not render the husband and wife competent as witnesses for or against each other.
The argument of the court is, that such testimony was excluded at common law on the ground of public policy, as well as upon the ground of interest, and that the statute is not broad enough to remove the disability grounded upon considerations of public policy in the case of husband and wife.
This, however, was hot an action between husband and wife as adverse parties, but a trial of the rights of property in cer
The case is therefore not clearly in point, for in the construction of the Missouri statute it was held on the ground of public policy also, that husband and wife were incompetent to testify for or against each other where they were not the opposing parties in an action, except in certain cases specified in the statute; and that as to all other cases the common law rules of evidence prevailed. See Moore v. Moore, supra.
In the case of our statute, there is less room for construction than in either of the acts referred to. The. question whether the principal section declaring who shall be competent witnesses in a cause, was designed to include husband and wife, has not been left entirely open for judicial interpretation. The legislature has placed its own construction upon this section, by the enactment of section five, of the same act. The latter section not only informs us that such persons were included, but proceeds to limit the rights and privileges therein granted to husband and wife to specified classes of cases, among which is enumerated the class now under consideration, viz: “ "Where "the cause of action grows out of a personal wrong or injury done by one to the other.”
The suggestion of counsel that desertion is not a personal wrong or injury within the meaning of the act, and that only corporal injuries, as assaults, were contemplated, will not bear discussion. It is difficult to conceive of a more grievous personal wrong, capable of being committed by one of the parties to this sacred compact against the other than an act which is wholly destructive of the aims and purposes of the marriage relation. Such an act is willful desertion, without reasonable cause. That it was the design of the legislature to effect a radical change in the common law rules of evidence in respect to such cases as this, is clear, and it therefore becomes our duty to give effect to the law.
In respect to the testimony in this case, it certainly deserves the caustic criticism given it by the able counsel for the plaintiff in error. In an action of this character, and especially in
Nor can we regard the delay in prosecuting this writ as favorable to the cause of plaintiff in error. The five years allowed for prosecuting such writ had almost elapsed when the writ was sued out. In the meantime, the plaintiff below had contracted another marriage, and was then in his grave; as was also the wife of that marriage, before service of said writ.
Such cases are entitled to receive just such indulgence at the hands of courts as the strict rules of law require, and no more. We are unable to perceive from the record, that the law has been violated to the injury of the plaintiff in error, and must therefore affirm the decree.
Decree affirmed.
