Andrade v. Andrade

• Decision Date: 23 December 1912
• Docket Number: Civil 1281
• Parties: HELEN L. ANDRADE, Appellant v. ALBERT F. ANDRADE, Appellee
• Court: Arizona Supreme Court

128 P. 813

14 Ariz. 379

HELEN L. ANDRADE, Appellant v. ALBERT F. ANDRADE, Appellee

Civil No. 1281

Supreme Court of Arizona

December 23, 1912

APPEAL from a judgment of the Superior Court of the County of Yuma. Frank Baxter, Judge. Reversed.

The facts are stated in the opinion.

Mr Thomas Fitch, Mr. H. T. Morrow and Mr. John H. Campbell, for Appellant.

Mr Peter T. Robertson and Mr. Peyton H. Moore, for Appellee.

OPINION

ROSS, J.

The appellee, plaintiff below, his original complaint charged the appellant, defendant below, with desertion, cruelty and adultery. From the amended complaint the adultery charge was eliminated. The appellant's answer denied the allegations of desertion and cruelty, and denied that appellee was a resident of Yuma county, Arizona; averred that on October 5 1910, appellee in the district court of Yuma county, Arizona, through fraud, obtained a decree of divorce from appellant, which subsisted and was in force until October, 1911, when it was vacated and set aside because of said fraud. By way of recrimination and as an affirmative defense, appellant charged the appellee with adultery with divers persons and with cruelty in charging her with adultery in his original complaint. She averred a willingness to live with appellee, and averred that she was conscientiously opposed to a divorce. She asked for separate maintenance, for one-half of appellee's income, and for costs and expenses of this action and reasonable attorney's fee. The appellee was granted a decree of divorce, and appellant was denied any relief. From this decree, and the order overruling the motion for a new trial, this appeal is taken.

The appellee makes the point that this case is not appealable, asserting that it does not fall within the terms of [14 Ariz. 382] paragraph 1212 of the Revised Statutes of Arizona of 1901, which reads as follows: "1212. (Sec. 3.) The supreme court shall have jurisdiction to review, upon appeal or other proceedings provided by law, the judgments of the district courts: 1. When the matter in dispute exceeds one hundred dollars. 2. When the legality of any tax, toll or impost or municipal fine, or the validity of any statute is in question. 3. In all criminal cases amounting to a felony. 4. When the possession or title of lands or tenements is in controversy."

If it was the intention of the lawmakers by this language to deprive the supreme court of jurisdiction of appeals in divorce cases, the attempt was futile, as being in conflict with section 1869, Revised Statutes of the United States (Organic Law Ariz. Ter., sec. 37). That section provides: "Writs of error, bills of exception, and appeals shall be allowed, in all cases, from the final decisions of the district courts to the supreme court of all territories, respectively, under such regulations as may be prescribed by law, but in no case removed to the supreme court, shall trial by jury be allowed in that court." The Congress had plenary power to legislate for the territory of Arizona, and it is plainly shown by the language used that the supreme court of the territory of Arizona was given jurisdiction on appeal or writ of error "in all cases from the final decisions of the district courts."

In Smith v. Wheeler, 4 Okl. 138, 44 P. 203, the supreme court of the territory of Oklahoma, after quoting the above section and a law of the legislature of that territory attempting to limit the right of appeal in cases exceeding one hundred dollars, exclusive of costs, at page 204 of 44 Pac. (4 Okl. 140), said: "Now, the judgment appealed from is a final decision of one of the district courts which are provided for by the organic act, and all the power the legislature has in the premises is to make regulations for taking such appeals. And the right to regulate the manner of taking such appeals does not give the legislature the right to deny them."

The territory of Arizona became the state of Arizona on February 14, 1912, and after the institution of this suit, but before the trial. Were it a fact that no appeal laid under the territorial laws, this appeal, having been taken after statehood, is to be governed by the constitution. Section 4 article 6, provides: ". . . It [the supreme court] shall have appellate jurisdiction in all actions and proceedings, but its appellate jurisdiction shall not extend to civil actions at law for recovery of money or personal property where the original amount in controversy, or the value of the property, does not exceed the sum of two hundred dollars, unless the action involves the validity of a tax, impost, assessment, toll, municipal fine, or statute."

The appellee's contention is that, the action having been begun before the territory became a state, it must be finally determined in accordance with the territorial laws. Reliance for this position is had on section 1, article 22, of the constitution, wherein it is provided that "no rights, actions, suits, proceedings, contracts, claims, or demands, existing at the time of the admission of this state into the Union, shall be affected by a change in the form of government, from Territorial to State, but all shall continue as if no change had taken place. . . ."

In Independent Cotton Oil Co. v. Beacham, 31 Okl. 384, 120 P. 969, a similar contention was made, and the supreme court of Oklahoma, whose constitutional provision was practically the same as ours, said: "We cannot agree with counsel. The rule is that no person has a vested right in any particular mode of procedure, and if, before the trial of the cause, a new law of procedure goes into effect, it governs, unless the statute itself provides otherwise."

In Cusic v. Douglas et al., 3 Kan. 123, 87 Am. Dec. 458, it is said: "It certainly was not the intention to provide that no change of remedy which might be adopted under the constitution should apply to the enforcement of a contract made or judgment rendered before its adoption. Such a construction would operate to keep in force laws flatly repugnant to the constitution itself, and such laws are by direct implication repealed by that instrument." Kelly v. Larkin, 47 Cal. 58; Boise Irr. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321; Roenfeldt v. St. Louis & S.R. Co., 180 Mo. 554, 79 S.W. 706; Marion v. State, 20 Neb. 233, 57 Am. Rep. 825, 29 N.W. 911; Hallock v. United States, 185 F. 417, 107 C.C.A. 487.

It is clear to our minds that the constitution gives the right of appeal, and we hold that the case is properly before us both under the laws of the territory and the state.

As we feel compelled to reverse this case, we do not deem it necessary to pass upon the first two assignments of error as to the rejection of evidence. The assigned errors we shall consider are: (1) The court erred in finding that the plaintiff is a bona fide resident of Yuma county, Arizona, and had been such for one year preceding the filing of this action. (2) The court erred in holding that defendant was guilty of willful desertion. (3) The court erred in finding the defendant guilty of cruelty.

Before or at the time of the entry of the decree of divorce the court made a general finding to the effect that plaintiff has sustained by evidence all of the material allegations of the complaint. Some time thereafter, without notice to either side, the judge at his chambers, made special findings. We agree with appellee that these special findings are not properly before us. Only the court can make findings. Laws 1907, c. 74, sec. 4, p. 123; Kahn v. Central Smelting Co., 102 U.S. 641, 26 L.Ed. 266; Wachsmith v. Orient I. Co., 49 Neb. 590, 68 N.W. 935.

The general finding of the court necessarily comprehended a finding that the plaintiff was an actual bona fide resident, and had been such for one year prior to the commencement of the action, that the defendant was guilty of willful desertion and cruelty, and that finding, therefore, affords a basis for the above assignments of error.

In Sneed v. Sneed, ante, p. 17, 123 This court, in considering the residence necessary to entitle one to maintain divorce proceedings, said: "We conclude that an actual bona fide resident' means a person who is in Arizona to reside permanently, and who, at least for the time being, entertains no idea of having or seeking a permanent home elsewhere." Tested by this rule, does the evidence in this case justify a finding that the appellee had been, before the commencement of his action, an actual bona fide resident of Yuma county, Arizona, for one year?

Appellee and appellant were married in Texas in 1895. Since that time they have resided in San Francisco, Los Angeles and Mexico City. Much of the time they have from necessity, rather than choice, it seems, been separated. Of the two years that appellee was in Mexico City, the appellant remained in San Francisco most of the time, and on account of their financial needs worked to maintain herself. In 1904 they returned to Los Angeles, where appellant remained until 1908. The appellee secured employment as assistant manager of the Inter-California Railroad Company in June or July, 1904, at Calexico, California, and Mexicali, Mexico, but because of the unsettled condition of affairs out there his wife remained in Los Angeles, he visiting her at intervals of ten days or two weeks, until 1908, when she moved to Calexico. In the meantime, appellee had bought some land at Calexico, which he caused to be deeded to appellant. In 1909 a dwelling was built on this land, and appellant, in the absence of appellee, moved their furniture and effects from the hotel to this place. About that time they had trouble, caused, as appellee affirms, because his wife wrongfully accused him of taking another woman to a bull fight; and appellant assigns as reason for trouble the...