25 Colo. 33 | Colo. | 1898
delivered the opinion of the court.
The principal errors assigned and argued here are, (1) the ruling of the court to the effect that the second and third grounds of divorce, as set up in defendant’s additional cross-complaint, were not sufficient to constitute causes of action; (2) certain rulings of the court in giving, refusing and modifying instructions; (3) the action of the court in receiving an incomplete verdict, and in not requiring the jury to pass upon all the issues tried.
In the second and third causes of action found in the additional cross-complaint, the defendant in substance charges that the plaintiff falsely and maliciously and without probable cause, and without notice to the defendant, obtained from the district court of Arapahoe county two mandatory writs of injunction, under and by virtue of which the plaintiff ejected and expelled the defendant from his home, which caused him great mental suffering. In the second cause of action the allegation is that the writ was obtained in division 2 of the district court; and in the third, that it was issued out of division 4. Such writs issued without notice aré absolutely void. Newman v. Bullock, 23 Colo. 217; Smith v. People, 2 Colo. App. 94.
We are not advised from the record in what respect these causes of action were deemed insufficient; but we are satisfied from our examination that each states a cause of action, and that the ruling of the court in excluding evidence for the reasons assigned was erroneous.
Counsel further attempt to uphold this ruling by indulging in the supposition that the district court, after hearing evidence in support of these two charges, may have struck it out on plaintiff’s motion because it did not sustain, or tend to sustain, their averments; and that this court, upon appeal, cannot say, in the absence of a bill of exceptions containing the evidence, that the ruling of the district court upon this ground was improper. But the bill of exceptions, while not containing the evidence, negatives any such supposition by expressly reciting that all evidence offered to prove them was rejected for the reason that the facts alleged, as a matter of law, did not constitute any ground of divorce.
In our view, it is immaterial whether, when the jury returned the verdict which is found in the record, the court inquired, as claimed by defendant, whether they had “ oonsidered,” the grounds of divorce alleged by the defendant in his cross-complaint, or whether, as contended for by the plaintiff, the inquiry of the jury was if they had li found ” on the defendant’s cross-complaint; for in either event it was manifestly the duty of the court to require the jury to find not only upon the issues raised by the complaint and the answer, —or, in other words, find the issues as to plaintiff’s causes of action,—but also to find the issues tendered by the cross-complaints and the replication, or as to the defendant’s alleged causes of action.
This doctrine finds express legislative sanction in section 8 of our present divorce statute (Session Laws, 1893, p. 240), where it is provided that: “ In all actions for divorce the defendant may file- a cross-complaint, in which may be set forth any legal grounds for divorce against the plaintiff; and if upon the trial thereof both parties shall be found guilty of injuries or offenses which would entitle the opposite party to a decree of divorce, then no divorce shall be granted to either party.” If there was evidence tending to sustain defendant’s charges, as the trial court expressly recites, and as is further attested by its submission to the jury of a form of verdict applicable thereto,—without regard to the fact (if it be a fact) that either or both of the parties may have waived it, and are estopped now to complain of its omission—it was certainly the duty of the court, in the interests of the state and to conserve public morals, to require the jury to find upon all the issues tried. It follows that it was error to receive and record the verdict returned, finding only upon a portion of the issues.
This instruction is wrong. Thereby the jury are advised that they are at liberty to disregard the testimony of a witness who may have spoken falsely, even though he may have done so through an honest mistake. If there- was evidence upon which to predicate an instruction of this kind, the element of willful or corrupt intent should have been embodied in it. Gottlieb v. Hartman, 3 Colo. 53; Last Chance M. & M. Co. v. Ames, 23 Colo. 167.
For the errors pointed out, the decree will be reversed, and the cause remanded.
Reversed.