4 Colo. 410 (Colo. 1878), Clayton v. Clayton

Citation:4 Colo. 410
Opinion Judge:ELBERT, J.
Party Name:CLAYTON et al. v. CLAYTON, HEIR, etc.
Attorney:Messrs. H. M. & W. TELLER, for appellants. Mr. L. C. ROCKWELL, for appellee.
Case Date:December 01, 1878
Court:Supreme Court of Colorado
 
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Page 410

4 Colo. 410 (Colo. 1878)

CLAYTON et al.

v.

CLAYTON, HEIR, etc.

Supreme Court of Colorado

December, 1878

Appeal from District Court of Gilpin County.

EJECTMENT-Declaration ordinary form claiming as heir at law; plea, general issue. On the first day of March, A. D. 1867, James W. Clayton procured summons to be issued out of the office of the clerk of the district court of Gilpin county, against Sarah A. Clayton, his wife, on a bill for divorce. The respondent was a non-resident, and on the same day the summons was issued it was returned non inventus by the sheriff. The complainant thereupon procured an order of notice by publication requiring the respondent to appear and answer at the ensuing April

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term. On the fourth day of April the bill was taken pro confesso, and reference to the master ordered to take proof. On the twenty-sixth day of June following, it being one of the days of the April term, the report of the master was filed, and on that same day a decree was signed granting a divorce in accordance with the prayer of the complainant's bill. The only witness produced before the master, as appears from the report, was the complainant, who, being duly sworn, testified:

'My name is James W. Clayton, and I am the complainant in this cause; reside in Nevada, in Gilpin county, Colorado Territory; the defendant, Sarah A. Clayton, and I were married on the 3d day of May, A. D. 1855; I have resided in this, Gilpin county, since the summer of 1860; the defendant came to this county with me in April, 1862, and resided here with me until the fore part of October of the same year, and the defendant being dissatisfied with the country, I took her back to Illinois in October, 1862; she did not seem more dissatisfied with the country than any other; she has since October, 1862 (except a short time spent in Eastern Ohio) resided in the State of Illinois; two years ago the spring last past, I was in Illinois, where the defendant resides, and asked her to come to Colorado Territory and live with me, and she refused so to do, and still continues to live separate and apart from my house; I have always been able and willing to provide and furnish the defendant with a good and comfortable home, and supply and furnish the same in a comfortable manner and always did while the defendant lived with me, provide a comfortable house and home for her, and in all respects provided her from the day of our marriage, until she neglected to live with me, with all the necessaries and comforts of life, and in all respects treated her in a kind, considerate manner, as a husband should treat a wife.'

At the April term, A. D. 1876, the appellee as the heir at law of James W. Clayton, commenced this action in ejectment in the district court of Gilpin county, against Sarah

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  1. Clayton, administratrix, and James Clark administrator, of the estate of James W. Clayton, deceased, to recover possession of a certain lode claim, mill site and other property, in Nevada mining district. On the trial in the district court, the first witness, A. M. Jones, called on behalf of the plaintiff, testified as to the possession of James W. Clayton in his life-time, of the property in dispute, and that he knew Sarah A. Clayton, the plaintiff, 'James W. Clayton's first wife.'

The plaintiff then offered in evidence the Master's report, containing the deposition of James W. Clayton, as above set forth. The defendants objected and alleged as the grounds of their objection, that the statements of Clayton could not bind them, the defendants, and that, if the plaintiff put...

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