*1 enacted its protection, thereby plaintiff, divest which is without of its blame, property. judgment of the court is and cause reversed, with
remanded instructions to enter plain- tiff herewith. harmony 16,003.
No.
United States National Bank Denver et al. Bartges.
(210 600) P. [2d] July 14, Rehearing 1949. Decided denied October 1949. *2 Karl F. Messrs. Mr. Akolt & Brock, Campbell, plaintiffs John Mr. error. Crass, Akolt, Jr., Messrs. Bartlett Foulston, Siefkin, Schoeppel, & George Mr. Mr. John Powers, Siefkin, Eberhardt, F. Max D. Mr. Mr. D. Bowman, for defend- Don Melville, in error. ant
En Banc. *3 opinion
Mr. Justice Moore delivered the of the court. plaintiff in error was in the trial court. Defendant brought against George Dickey She this action her During pendency former husband. of the action in Dickey plaintiffs the trial being died and in error, the executors of his were estate, substituted as defend- ants. they References to the will be made as appeared by in the court, name. Dickey long prior February
Plaintiff and for a time They 1944, were residents of Wichita, Kansas. mar- plaintiff ried in of at eighteen June which time was years age Dickey thirty-eight. and At the time proceedings, of the divorce they hereinafter mentioned, living ages had eighteen two children years of the years. plaintiff and five an action for On October 27, 1943, filed Sedgwick
divorce the district court county, alleged, Kansas, in which she in addition to the statutory ground for marriage divorce, that since their Dickey jointly and had large accumulated a property, amount of most which stood in the name Dickey. entry of Mr. She asked the of a divorce decree prayed given Dickey’s portion that she be such
property might by pur- be awarded to her the court attorney money, suant to for law, costs, fees and suit custody for of the minor children. two Dickey filed his answer on December 13, 1943, grounds which he denied the for divorce existence alleged by plaintiff. property He admitted that some during had been accumulated him married life parties, of the which most of was held in his name. petition, sought his cross in which he he divorce, alleged statutory grounds procurement thereof. On December 15, in said action filed a motion attorney fees and for a statement in which sought Dickey complete she from a “full and statement properties, personal, of all real, whether mixed, stating legal description owned this defendant, property, including all its value location, .and amounts, and serial names, numbers of all stocks and complete bonds owned defendant, said list of every each and and all of the owned said up defendant.” motion This was never called for hear- ing appears to have been withdrawn at time entry interlocutory Following decree. filing demanding by Dickey of the motion a disclosure property, of the extent, location and value of his he furnished a financial not show the value of his which statement its face did holdings, only but investment plaintiff, through costs. Thereafter and the their attorneys, negotiations concerning carried on a settle- ultimately ment which resulted in an be- *4 provided tween which them that the wife should re- minor ceive, addition to' some items of no material . import, Actuálly $325,000.00. sum of $250,000.00 placed pro- of this sum was an irrevocable trust to per vide the wife with the sum of month for life, $550.00 any corpus conditioned further remaining that her death would become a trust of a trust for her two children which theretofore had been estab- Dickey by Dickey. lished Mr. Prior the divorce action Dickey and $250,000.00 had created a trust of Mrs. provision of Mrs. this trust contained a that the event Dickey’s ceasing wife, or her his the trust death, be should be maintained for the children. This trust Dickey terminated and Mrs. interest of therein by was surrendered the settlement. February case,
On the Kansas divorce from withdrew the consideration of the court particulars together motion his for a bill his with cross-petition proceeded answer and and the cause as a non-contested case. The in locutory introduced evidence support granted complaint of her and was an inter- contained,
decree of divorce. The decree said following: alia, inter
“Thereupon, it was announced to the court that the parties hereto had reached an amicable con- settlement, cerning property property rights, prop- their and which erty parties settlement was submitted to the being court for consideration of the court, and the court duly premises, property advised in the finds that said equit- settlement, the circumstances, is a fair and properties able division of the accumulated parties during marriage said and that the same should approved by be the court.
“Second: That made settlement between parties hereby, approved be, hereto and same is court, said division 'of rights of their mutual is fair, settlement reasonable equitable and court under all circumstances, and that the payment any alimony no order for
makes to in this case.
“Seventh: It is further ordered the each they hereby hereto be, each are permanently asserting any right, perpetually enjoined claiming from prop-
title or interest in and to the *5 erty prop- the the the other as same established any property erty parties, of the or in and to settlement party may acquire purchase, hereafter which either gift, descent, otherwise.” only evidence clear the
It is from record that for submitted consideration of relating the existence of divorce action was grounds approval for the court divorce, and the upon was entered settlement stipulation parties upon opinion of the and not concerning of the based ade- court, evidence quacy or fairness thereof.
Shortly granting plain- divorce decree after of the Bartges, employee who an tiff married a Mr. had been Dickeys, and and her new husband took of the Dickey up Mr. be- Pueblo, their residence Colorado. Denver, came a resident Colorado. complaint September
On 1, 1945, filed her alleging Dickey in this action fraud on the procurement agreement, of the settlement asking damages and in the sum of two million dollars. The moved on defendants dismiss ground jurisdiction the court lacked of the subject original matter reason that the contro- versy had been determined the district court Sedgwick county, Kansas, and that action the this plaintiff sought property, an additional division of jurisdiction subject any, of the matter, if existed only in said Kansas court. This motion was denied July setting up on 1, defendants answered thirteen defenses, the essence of which will be herein- after considered. findings its court entered decree on following
September specific contain which statements: marriage
“First: That at the time George possessed of little means and eventually became sizeable estate which he that the amounting possessed, five somewhere between during the married six was accumulated dollars, million *6 parties; life of the Dickey guilty George not
“Second: That P. was any presentation fraud in the state- affirmative worth which was furnished in ment his financial pursuance made for a disclosure of of the motion his * * * property. further
“Third: The evidence shows and convinces George Dickey’s Court matter that the wealth did negotiations seriously parties not whereby enter into the any contemplated was division there real marriage based relation had on existed twenty years. Dickey for That neither Mrs. nor her any during counsel, Mr. Foulston was duress negotiations, any part nor was there on the coercion Dickey making Mr. or his counsel in the of the settle- agreement. any ment That duress coercion was created Mrs. herself due to her conduct so marry Bartges possible. that she could Mr. as soon as by Dickey “Fifth: That settlement made on his twenty years, considering wife of nig- wealth, his was gardly say and, to not what least, her counsel would accepted have nor her, what would have granted providing her, had there been conduct on her that resulted in this settlement.
“To third question, [*] while the Court cannot con- [*] [*] done the misconduct of and the same is to positive despite be censured in terms, nevertheless, her misconduct Court feels that she is entitled to further in this matter reason consideration of the fact that considering the contract of Dickey’s on its face, settlement Mr. inadequate wealth, was and unfair.
“* * * [Dickey] guilty he was therefore of extrinsic entering agreement.” fraud in into such an be re- defendants trial court decreed plaintiff a trust quired the benefit of establish per produce an additional sum of $450.00 sufficient to agreement should be irrevocable .that said trust month; agreements “comprise terms the same and should agreement” created trust as contained irrevocable February pursuant separation findings entry Following of these defendants 1944. findings to include re- amendment thereof moved for an lating applicable Kansas, law of the State of to the upon stipulation of to the the amendment ap- findings thus found that the It was ordered. plicable in certain Kansas was as set forth law of Kansas, the State of to which reference was statutes in eighty-eight made, and as further declared decisions Supreme Kansas, Court of citations which were *7 made ports. lowing: of the and reference title case to official re- findings the trial
The of court included the fol- pertinent “The Court that at all times to finds the issues the of Kansas was as in this case law set forth Supreme and declared in above and the statutes Kansas opinions.” Court and decisions specifications points The filed defendants have cross based the failure of the court to find that guilty duress; of affirmative fraud and affirmative granting outright money and for not the an creating spendthrift lieu a trust for her use and benefit. It conceded that the of Kansas is laws control on the substantive here and involved, matters governed by procedural that matters are the laws Colorado. contending parties support each claim for their array
respective positions found authorities law of Kansas. We first con- court to declare the the trial grounds urged by points re- defendants as sider versal.
Questions be Determined. to foregoing state does facts, First: Under the jurisdiction subject court Colorado have over matter action? this argue
Counsel for defendants a that Kansas law acquire property wife can no her interest hus- except by property through band division or court order proceedings; only as an to incident divorce jurisdiction property Kansas has a divorce court over wife; division between and and no that, husband motion property to vacate the divorce and Kansas division de- having cree been filed in the divorce within court permitted by appeal time Kansas laws, no hav- ing Supreme been taken from such decree to Kansas having expired Court, the time within which such appeal might have been taken, court, Kansas, even grant plaintiff. could now relief Section 60-1511of the General Statutes of provides of Kansas, State where as substance, amended, granted by is divorce reason of the fault of the husband, that the wife shall have restored her all the marriage acquired owned her before her or right marriage in her own after be allowed shall alimony such court shall order. The fur- statute provides, granted by ther event divorce rea- son of wife, the fault of whole prior marriage separately owned her to the ac- quired marriage her, after be restored shall “and also may award her court the wife such share of hus- personal property, both, band’s real and as to the may just appear reasonable; and she shall be right remaining *8 of all all the barred lands of which may her husband at time have been seized. And property, personal, to real such whether or as shall have by jointly acquired parties during the their been riage, mar- the title or both whether thereto be either parties, the shall make such division between said court may just respectively appear parties and reason- the as property by setting by the in kind, a division of or able, parties requiring apart to the and one of the same proper may just pay and sum to be other thereof such * * *” just Thus to a thereof. effect fair division regard by to statute, the terms of the Kansas without warranting committing party in acts fault of either a is entitled to other, a in favor the wife divorce jointly “acquired by property division of the right during marriage.” The this division of their to separate property distinct from law is Kansas alimony. Cummings Cummings, 138 Kan. (2d) Supreme stated, of Kansas Court right only. “Alimony maintenance right basis to has its basis, just property for its to a Division of has equitable property.” share of separation parts is to be those of the
It noted that agreement, providing not were division, for a Only by incorporated reference in the divorce decree. agreement approve there- the court the terms said did whether or therefore, of. It is to determine essential, were not decreed terms of the settlement incorporate by the them Kansas court so as to judgment If in the divorce decree. final Kansas judgment are a terms of settlement judgment then could be the Kansas court that that more court the reason assailed Kansas years elapsed after had the rendition than two (General judgment statutes and the Kansas Statutes §60-3008) provide §60-3007and Kansas, 1935, sub- power district shall have “for stance that Kansas modify practiced judgments fraud, own vacate its judgment party, obtaining successful provide any proceed- order.” Said statutes further practiced by modify judgment ing fraud obtained party, within two “must be commenced the successful years order was rendered or made.” after applicable law of Kansas hold that under the
We agree “adjudication” of the settlement there was agree said court, the Kansas divorce ment merged in the divorce decree ref- was not ment *9 approval agreement erence to it and of the which the upon request parties. court entered of the The parties legal in the divorce case in withdrew effect property division from issue the consideration of the by their contract of and their settlement, rights thereafter became and remained contractual. The procurement agreement issue of fraud in the of said was pleadings not raised in the Kansas court and no any evidence was considered on issue of fraud. While it pleadings is true parties their raised an is- property rights sought judicial sue of division of the property, subsequently by contracting regard with they effectually thereto, withdrew from that issue case. Under the law of Kansas contract became bind- ing deprived conclusive the court, and jurisdiction adjudicate property rights court of the absence of issue raised in the divorce action concerning fraud, duress, concealment undue influ- grounds invalidating agreement. ence, or other Petty Petty, We consider the case of 147 Kans. (2d) Supreme 850, and the other decisions of the authority Court of Kansas, there cited, sufficient Petty this conclusion. In the case, decree divorce granted years prior the husband. About four entry thereof the had entered into written Agreement “Separation Property Settlement.” The custody wife, the divorce asked action, chil- approve separa- dren and that the trial court the said agreement. approve tion The trial court refused to findings and entered that, un- “unfair, it was unjust.” Supreme reasonable and in Kansas, Court reversing judgment, said: appellant
“Counsel for contends the court erred in finding separation agreement unjust and unreason- freely intelligently able, that was not it made plaintiff, holding is indefinite, it and in it to be previously void. There is merit this contention. As put validity appear have been noted, its does not pleadings.” issue
[*] [*] [*] validity agreement, passing “In when on the nothing be- the trial had was rendered request agreement the and defendant’s fore it but in her itself petition approved. the that it We have cross be agreement meaning its and can read and determine before us it validity court could do.”
and as well as the trial Petty court referred to case, In the the Hyde Hyde, v. (2d) 75 P. 437; 134, 56 147 Kan. Id., 143 Kan. 660, analyzed holding (2d) case as fol- 1023, and lows: parties agree-
“Pending made an action, a divorce custody daughter and sum ment as of their to the pay and wife her care main- the husband would They and had embodied tenance. executed it this brought separate a divorce. Later the wife decree of specific performance A the contract. de- suit for modify Later moved to cree the defendant was entered. contending paid, the court had the same to be sum modify respect right that it would the decree to modify entered under the statute in to decree have respect the husband to the amount case with divorce support pay of a child. The court declined for the should competent parties con- were to that view. to follow they the contract the condi- so, had done set out tract, paid could be the amount to be modi- under which tions rights respect and liabilities of the in that fied, by governed contract, terms of the were authority statutory in divorce of the court cases.” opinion concluding the court stated: its competent parties agree wife are “A husband upon a division of themselves between support husband payments to be made fairly agreements are intelli- When such the wife. they are not induced gently when is, made—that influence, or undue not the concealment, fraud, duress,
329 parties fully mistake, result of mutual and when the uniformly they doing they understand are what are — upheld by (13 King 466; Mollo- courts. C.J. v. 465, Dondelinger 731; 61 60 683, Kan. Pac. v. Dondel- han, inger, 165 179, 849; 101 Kan. Pac. Blair 106 Kan. Blair, v. 109 Bradley Burgess, 746; 186 Pac. 198 151, 347, v. Kan. 326; 113 967; Dutton, Pac. Dutton Kan. 213 Pac. 146, v. 1015; Arthur Pac. Hew- Moorhead, v. Kan. 897.) ett 132Kan. 294 Pac. Gott, v. fairly authority ignore
“Courts have no a contract, intelligently parties, arid an- made and make (Shaffer other for them. 10 P. Shaffer, Kan. 17.) 2d
“It was error for the court to hold this void.”
No issue of in- fraud, constructive, actual or was present *11 Petty volved in the case and no such issue was or considered the the divorce the of court at time divorce decree. In the case had at bar the divorce court power disapprove no Dickey. the contract and Mrs. of Mr. (2d)
Perkins 154 114 Perkins, 73, v. Kan. P. 804. The fact that the divorce court stated formal pronouncement agreement equi that the “fair present, table” under the circumstances here does not merging agreement have the effect of the into de the cree. Thus the action of the is one as which sails contract, the the decree not of the divorce jurisdiction court. It that follows the trial court had subject matter of action. this Second: Is decree the Kansas Divorce judicata Court res as to the in issues involved this action require judgment being so reversal as this as vio lative credit clause the Constitu full faith tion the United States? answering question negative In this in we con- again foregoing applicable. sider discussion Addi- grounds negative apparent. tional for the answer are In action, the divorce the terms of the settlement contract 330 only a divorce There is in decree.
were not
forth
set
is not
contract
contract. Since the
reference to the
merged
does
issue
settlement
decree,
in the
unquestionably
judicata.
the law
is
This
not become res
(2d)
9
90
P.
Kastner,
280,
Colo.
Colorado. Kastner v.
P.
132
331 raised was in tried pleadings, by express fact consent implied If such were parties. issues thus her tried, failure of complaint to amend would not “affect the result of of these the trial issues.” Toy Rogers, 114 165 1017; Colo. R.C.P. (2d) Mawson, Scheller v. Colo., Rule 15 (b); 117 Colo.
In volume 2, C.S.A., ’35 of Civil our Rules containing Procedure, at there page text an able appears the lecture Mr. Thomas Keely concerning the purpose and effect of the said rules. and de- prepared It was himby livered aas member of the prominent revision committee of the Bar Colorado Association for the bene- of the bench fit and bar of just prior this state to the ef- date of the fective Rules. At 461 we page find among others, following Keely statements Mr. concern- the effect ing (a) of Rule (b):
“Remember that causes of or, actions more perhaps to, referred definite of causes properly theories of action, should have proper place applying the rules.
[*] [*] [*] “The our force of last comment is illustrated by Rule (b). When raised by issues are pleadings tried express implied consent, amendments in be made' to conform pleadings may to the evidence during either before or after or even trial, judg- but the to amend ment, failure does not affect result the trial of the issues.
[*] [*] [*] “It seems evident fairly idea that party should be to a theory held cause of action or de- fense is under Rule 15 out of place (b). judges rules should see interpreting applying it remains out of place.”
Since the of the rules our has given adoption to Rule (b) liberal which was recom- interpretation mended in the foregoing quotations. very
At the outset of this cause plaintiff’s *13 opening attorney she was disclosed that in his statement representations relying upon particular al- false not leged recovery except complaint for in the as basis complaint were in the referred to the “balance sheets” Dickey. In Mr. of of concealment assets evidence attorney opening case stated: his taking position case is this that we are “Now the and worth there a concealment of actual assets that throughout proceedings; George Dickey entire of F. fairly supposed and hon- is to deal the husband whereas estly matter of make full disclosure to his wife in a necessity, course, and, he did disclose of kind, this concealed from not her the facts. position this, is that law of Kansas
“It is our proceeding any re- kind, that a divorce substance; may jointly-accumu- gardless of whose it that be, fault fairly equitably be- divided lated shall be husband and wife. He under the absolute tween the making duty value, assets and of full disclosure of ordinary be should the division case approximately half, and ever than one- seldom if less third.” objection any interposed
Defendants at time on ground opening statement either to. the variance, sup- plaintiff or evidence offered in counsel for opening port plaintiff’s state- as outlined in said case nonpleaded in fact contested the ment. The defendants of fraudulent assets. hold that issue nondisclosure of We considering question court did err fraud, extrinsic constructive for the reason those “by express implied consent of the issues were tried meaning parties,” (b), supra. of Rule within justify plain this record Fourth: Does relief upon the constructive or based extrinsic tiff fraud assets? nondisclosure of briefly the law We consider of the State of Kansas dealing necessity relating fair and full dis- agreements concerning separation hus- between closure agree with *14 when band and wife. counsel We say-in they law: Kansas brief that under their jure fiduciary re- and “1. Between husband wife ade lationship requires husband exercise exists which the good dealings utmost in all with his faith wife. Applied agreements, this rule de-
“2. to settlement complete full and mands that the husband make a dis- and all extent, closure his of the value of nature, wife property. his bar, in exe- where,
“3. the case an Moreover, at agreement inadequate dispropor- is cuted settlement guilty presumes the the husband of con- tionate, law overreaching, upon him and af- cealment casts the overcoming presumption firmative burden of such positive evidence.”
Many might support be cited in of state- cases these quote ments. We from two: but (2d)
In 155 Cessna v. Kan. 130 P. we Cessna, 560, “The 1060 find: as laid down in 30 C.J. is as fol- rule appear that husband exercised the lows: ‘It must good disclosure of all faith; utmost that there was a full including the circumstances facts, material husband’s might of the other fact which affect terms provisions agreement made in the contract; and that the just, equitable, fair, for the wife are reasonable, adequate of and circumstances view of conditions parties at the view the time, is, of of the and their station wife, the needs husband, the life.’ page 5 at 823 of A.L.R.” See, also, note “The Pac. 643: Watson, Kan. Watson if unreasonable to be well settled that in- rule seems appears, presumption adequacy disproportion upon hus- and the is is burden raised, concealment claiming under show full disclo- or those band, him, The relation between those about to become sure. hus- confidence, unbounded deemed one of band and wife is woman, especially on the 13 R.C.L. principle con- §54. in such cardinal faith is the ‘Good provision is unreason- wife made tracts. ably disproportionate If husband,
to the means designed and the presumption raised, is concealment (21 Cyc. upon disproving him.’ the same is burden 1250.)” supporting the find- evidence substantial
There was ing was of the trial that the settlement guilty “inadequate unfair,” and that question executing con- it. fraud extrinsic accordingly affirmative. answered in the sideration substituting err in Did trial court Fifth: Dickey’s estate as executors defendant proceedings during pendency Dickey’s death court? in the trial *15 negative. question
This must answered be Dickey fraud found constructive of which the court guilty property rights deprived as to be distinguished arising injuries, personal from those from and at common law would have survived without aid 448, Kan. of a 109 Brown, survival statute. Seamans v. 473; 587,
199 94 Moidel, Pac. Micheletti v. Colo. (2d) Vragnizan Savings 266; 32 Bank & v. Union App. Trust 161 Co., 709, Cal. Pac. 507. The law of the place wrong where the was committed determines or a action whether the not cause of survives death of wrong doer. Restatement of the law — Conflict p. relating §390. Kansas statutes Laws, Two to sur pending action vival of and to survival of ac causes against tions are conclusive the contention of defendants. They Supp. are Kan. 1947 60-3201 and G.S. Kan. 1947 Supp. 60-3203. upon be
Sixth: Should denied relief damage ground by any her cannot be that measured speculative permit legal so rule law and is as to the amount assessment thereof? rely upon gen- The answer is “no.” Defendants legal damage injury eral rule fraud without that or is argue “She in their brief: Defendants remedial. not between sought difference action the this to recover agree- property division what she obtained alleged if the have obtained would and what she ment any such However, committed. been fraud had not only money could obtain she or additional through Dickey through a contract with different awarding di- more her a beneficial decree of court damages ais measure of words, her In other vision. namely, .things, 'upon speculation one or both of two have would much more the Plaintiff how alleged, upon agreed fraud as had been no if there in its dis- Kansas divorce much more the how fraud as there been no had would have allowed cretion alleged.” argument to state answer to is a sufficient this
It damage be- plaintiff’s the difference is measure of agree- induced under the fraud received tween what she fair, have received she would ment what man- just made equitable division of is. n this datory amount of Kansas. The under the law correctly Colo- determined can be as difference by any State Olathe rado Court as other. Westesen 225 Pac. we stated: Colo. Bank, damage established, is “Where the cause damages no ob- uncertain is is or extent of amount damages ‘Uncertainty jection. as to the amount of Uncertainty way their allowance. an obstacle *16 they proceed has is what the cause from which as to only cannot be ascer- when it trouble, occasioned sprung certainty have that these with reasonable tained they rejected alleged too be to are the breach from McGregor, speculative.’ conjectural Rule v. remote, 811; 756. 17 C.J. Iowa, 90 N.W. 419, 117 184 we 357, 67 Pac. Bowen, 315, Colo. Denver v. “In exactly be deter- loss cannot such the fact that said that wrong go why unredressed, should a is reason mined 336 wrongdoer entirely expense escape
or the of his at the victim.” Story Paper Patterson Co., Parchment Co. v. Sup.
U.S. 564, the United Ct. L. Ed. Supreme States said: that there was Court “It true uncertainty damage; there as to extent of the but damage; was none as to the of the and there is fact proof a clear of neces- distinction between the measure sary petitioner to establish had sustained the fact that damage, necessary proof some and the measure of to en- jury precludes able a fix to which amount. The rule recovery damages applies of uncertain to such as are wrong, not the certain to those dam- result ages only definitely wrong which are attributable to respect uncertain in of their amount.” Seventh: Was reversible committed error specification points the trial court under not herein- above considered? carefully points urged by We have all studied defend- grounds ants as for reversal. We find no reversible er- specifications relating ror under the admission prop- evidence. The contention of that the defendants, erty Dickey subject prop- class is not which is erty division argument the law of is without Kansas, merit. in favor of payment be should limited to out of assets ap- estate not inventoried within six months from the untenable., pointment of the executors is Eighth: creating Did trial court err a “spendthrift” trust in lieu benefit of money specific damages? a award specification points
Plaintiff’s counsel cross con- awarding tend that the erred in her trial court relief creating yield trust for her benefit sum of They per month for life. contend that she was $450.00 money "judgment, lump sum entitled to denying jurisdiction court exceeded its to her over control en- unrestricted amount she
337 in this correct titled think counsel are to receive. We contention. damages fraud case was as an action for
This tried a set- on the with connection was constructive The court found that a fraud tlement. sitting by Dickey. as The trial court not committed a divorce erroneously upon placed limitations court, granted plaintiff only permis- be the relief which would Hough 76 Colo. Lucas, in a action. v. sible divorce following quoted approval the 230 with 789, Pac. we 94, “ only power statement: ‘Jurisdiction includes enforce a but enter and cause, to hear and determine right judgment. to enter the a there in the court If is juris- entry particular judgment is without entered, the People, 31 13 Pac. 461, 473, Tebbetts v. Colo. diction. People 844; 212 Pac. 869; Burke, 837, v. Colo. McVeigh, In the 93 U.S. L. Ed. 914. Windsor v. points hav- that, the court out if last-named case subject jurisdiction ing matter, and the power judgment which it transcends renders jurisdiction, doing in so it acts without law, conferred judgment 75 Colo. Hankins, void.’ Williams and its is 243.” 225 Pac. had interests of doubt the trial court the best Without creating “spendthrift” plaintiff in mind trust to objection advisable such made. however But, which legally arrangement might an it cannot be forced be, upon her. judgment far
The court is affirmed so right damages. recover as it sustains purports far it The is reversed in so as plaintiff. cause is create a for the benefit of trust money judgment remanded with directions to enter a court, such sum determined from the as shall be heard as will result in a fair and trial, evidence required equitable division Kansas against be de- All costs of suit should taxed law. fendants. Justice Jackson
Mr. dissents.
Mr. Justice Alter.
I an abiding entertain conviction that the trial court jurisdiction lacked over subject matter of this action, and I concur the order reversing I judgment; however, believe our final order in- should clude a remand of the cause with direction the trial dismiss the case. 16,128.
No. Company. Jensen v. W. B. Barr Lumber (208 P. 1164) [2d] July 14, Decided 1949.
Per Curiam.
Judgment affirmed in department without written opinion, Justice Mr. Hays, Mr. Justice Alter and Mr. Justice Moore, participating.
Messrs. Shuteran, Robinson & Harrington, for plain- tiff in error.
Messrs. Gorsuch & Charles Kirgis, Mr. E. Grover, defendant error.