Boyd v. Boyd
| Decision Date | 05 April 1920 |
| Docket Number | 9486. |
| Court | Colorado Supreme Court |
| Parties | BOYD v. BOYD. |
Rehearing Denied May 3, 1920.
Error to District Court, Arapahoe County; Robert G. Strong, Judge.
Suit by Nello May Boyd against Joseph W. Boyd. To review degree for plaintiff, defendant brings error.
Reversed and remanded.
Geo Allan Smith, of Denver, for plaintiff in error.
Edward M. Sabin, of Denver, for defendant in error.
September 7, 1911, Joseph W. Boyd, defendant below, plaintiff in error here, obtained a divorce from Nello May Boyd, defendant in error, and July 25, 1914, she brought this suit in equity to have the judgment pronounced void and the divorce decree annulled upon the alleged ground in her complaint that she had never been served with summons or notice, and that her signature to the answer, waiver of notice, acceptance of service, and consent to trial were forged, and that she had no notice or knowledge that a divorce decree had been entered until about July 25, 1914. The lower court found the purported signatures were forgeries, pronounced the divorce decree void, and set it aside. We will speak of her here as plaintiff and him as defendant, the same as in the lower court.
The instruments to which the signatures are alleged to be forged are as follows:
Acceptance of service on the back of the summons:
'State of Colorado, City and County of Denver--ss.:
'I do hereby certify that I have this day duly received a copy of the within summons, together with a copy of the complaint in the within stated action, thereunto attached and I hereby acknowledge receipt of the same and waive the service hereof by an officer.
'Witness my hand and seal this 7th day of September, A. D. 1911.
'Nello May Boyd, Defendant.'
Acknowledgment:
'State of Colorado, City and County of Denver--ss.:
'Nello May Boyd being first duly sworn, says that she is the defendant in the within entitled cause; that she knows the purport of the within summons and the complaint in said action, a copy of which she has received; that she is the same person who signed the above acknowledgment of the receipt of a copy of the summons and complaint in the within stated action.
Nello May Boyd.
'Subscribed and sworn to before me, this 7th day of September A. D. 1911.
'My commission expires March 6, 1915.
'[Notarial Seal.]
'Olga Jacobson, Notary Public.'
Answer:
'State of Colorado, County of Arapahoe--ss.:
'In the County Court.
'Joseph W. Boyd, Plaintiff.
v.
Nello May Boyd, Defendant.
'Answer and Waiver of Trial Notice.
'Comes now the defendant in the above-entitled cause, and, answering the complaint filed herein, says:
'Defendant admits the amount involved, the residence, the marriage, and that there is no issue of said marriage.
'Defendant denies each and every other allegation in said complaint contained.
'Wherefore defendant prays that the said complaint be dismissed, and for such other and further relief as to the court may seem meet.
'Defendant waives notice of trial, and waives the statutory time for the trial of said cause, and consents that said cause may be tried at any time convenient to the court without further notice to the said defendant.
'Nello May Boyd.'
Acknowledgment:
'State of Colorado, City and County of Denver--ss.:
'Nello May Boyd, being first duly sworn deposes and says that she is the defendant in the above-entitled cause; that she has read the above and foregoing answer, and waiver of trial notice, knows the contents thereof, and knows that the same is true of her own knowledge.
Nello May Boyd, Defendant.
'Subscribed and sworn to before me this 7th day of September, A. D. 1911.
'My commission expires March 6, 1915.
'[Notarial Seal.]
'Olga Jacobson, Notary Public.'
The divorce decree was entered September 7, 1911, and plaintiff and defendant each signed an alimony agreement, or contract, dated September 7, 1911, which recites that, whereas they have been separated by a decree of court which makes no provision for alimony or her future support and maintenance, therefore, he being desirous of making some provision for her future support, it is mutually agreed between them that he will, from and after September 7, 1911, pay her, in lieu of alimony, $365 per annum, to be continued until her remarriage or death; provided that he may at any time pay her $5,000 and be released from any claim by her for alimony, and provided, further, that he shall be under no obligation to pay the $5,000 unless he receives that amount from the settlement of a certain lawsuit, and then only in the event that she is not remarried and is still living. All household furniture in her possession is to be her absolute property. The covenants to be performed by him shall be in full settlement of both temporary and permanent alimony, or of any other claim that she might have against him by virtue of their being husband and wife. The life insurance of each to stand as it is at the time of making the contract.
In her sworn replication plaintiff states that she signed this alimony agreement some time in September, 1911.
October 12, 1911, she made, subscribed, and acknowledged before a notary a purported will, which provides inter alia that----
'All personal property I may own, clothing, housechold goods, bedding, and all cash I may own to be paid to my divorced husband, Joseph W. Boyd, at the time of my death.'
December 11, 1911, Mr. Boyd married one Josephine Elliott in the territory of New Mexico, and they immediately returned to Denver, where they have since resided. The year following the marriage a child was born to them, who is now living and past seven years of age.
GARRIGUES, C.J. (after stating the facts as above).
To sustain this action upon the ground of forgery the evidence considered as a whole must show the forgery beyond a reasonable doubt. To set the divorce decree aside upon this point, the evidence must measure up to the high degree of proof required to cancel written instruments. We have carefully examined the whole evidence, and find it comes far short of this requirement. Bearing upon, and illustrating this point, we cite the following authorities: Armor v. Spalding, 14 Colo. 302, 23 P. 789; Davis v. Hopkins, 18 Colo. 153, 32 P. 70; Enos v. Anderson, 40 Colo. 395, 398, 93 P. 475, 15 L.R.A. (N. S.) 1087; Butsch v. Smith, 40 Colo. 64, 90 P. 61; Mitchell v. Mitchell, 41 Colo. 72, 74, 91 P. 1103; Baird v. Baird, 48 Colo. 506, 111 P. 79; Kavanagh v. Hamilton, 53 Colo. 157, 168, 125 P. 512, Ann.Cas. 1914E, 76; Pinnacle Co. v. Popst, 54 Colo. 451, 462, 131 P. 413; Martinez v. Martinez, 57 Colo. 292, 298, 141 P. 469; James v. Aspelin, 57 Colo. 381, 383, 141 P. 993; Irvine v. Minshull, 60 Colo. 112, 140, 152 P. 1150; Wilson v. Morris, 4 Colo.App. 242, 245, 36 P. 248; Davis v. Dresback, 81 Ill. 393; Northwestern & P. Hypotheek Bank v. Ridpath, 29 Wash. 687, 70 P. 139; Huntington v. Crouter, 33 Or. 408, 54 P. 208, 72 Am.St.Rep. 726.
It is the province of a court of review to examine the entire evidence and determine whether the trial court or jury misconceived its force and effect. People v. Court of Appeals, ...
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