Calvert v. Calvert

• Decision Date: 03 October 1890
• Parties: CALVERT v. CALVERT.
• Court: Colorado Supreme Court

24 P. 1043

15 Colo. 390

CALVERT v. CALVERT.

Supreme Court of Colorado

October 3, 1890

Commissioners' decision. Error to Bent county court.

Action by William J. Calvert for divorce from his wife, Mary Jane Calvert. On defendant's failure to appear and answer after service of summons by publication, a final decree of divorce was entered against her by default. To review this decree, defendant brought writ of error.

Ufford & Van Buren, Reddin & Alphin, and Doud & Fowler, for plaintiff in error.

Markham & Dillon, Wm. E. Beck, and E. A Clark, for defendant in error.

RICHMOND C.

The writ of error in this case is prosecuted to review a certain judgment rendered by the county court of Bent county. From the original, additional, and supplemental transcripts of the records of said county court filed in this proceeding, it appears that, on December 19, 1884, William J. Calvert commenced suit against his wife, Mary J. Calvert, for divorce by filing his complaint in said county court, and causing summons to be issued thereon. The complaint alleged, in substance, the marriage of the parties November 20, 1859; the residence of the plaintiff in Colorado for a period of 12 months preceding the commencement of the action; that the amount involved does not exceed the sum of $2,000; and that defendant has been guilty of extreme and repeated acts of cruelty towards him, and, at divers days and times since their said marriage, has struck, beaten, bit, and otherwise cruelly abused and ill treated the plaintiff, and has used vile, abusive, and opprobrious language towards him, so that his life has been rendered miserable; that defendant willfully, and without any reasonable or just cause therefor deserted and abandoned the plaintiff, and had refused to live and cohabit with him any longer; and that for more than the space of one year, and up to the commencement of this action, has continually absented herself from home, and refused to return and live with him, and still does, without any fault on the part of plaintiff; and that said act of desertion became completed while plaintiff was a resident of the state of Colorado. The records further show that, on the day of filing said complaint, an affidavit by the plaintiff was filed in the cause to the effect that he is the plaintiff in the action; that he has good grounds of action against the defendant, as he is informed and verily believes; that defendant is not a resident of Colorado; and that her last known place of residence was Ann Arbor, Mich.; and therefore plaintiff asks that service herein may be made by publication. The records show that, upon the day of filing said complaint and affidavit, the judge of said court, acting as the clerk thereof, entered an order that service of summons in said action be made by publication, as required by the Code of Civil Procedure of 1877, and that John A. Murphy, publisher of the Las Animas Leader, or his foreman, A. J. Patrick, deposit a copy of the summons in the post-office at West Las Animas, Bent county, Colo., addressed to the defendant at her last known place of residence. The records also show proof of service of said summons by the affidavit of said A. J. Patrick to the effect that he was the foreman of the Las Animas Leader, a public newspaper printed and published weekly at West Las Animas, in the county of Bent, in the state of Colorado, and that the summons in said cause had been regularly published in four numbers of said paper, for four weeks successively; the first insertion thereof being in the paper dated December 19, 1884, the last in the paper dated January 9, 1885; and that, on said December 19, 1884, he deposited a copy of the summons in the said post-office at West Las Animas, addressed to the defendant named, at Ann Arbor, Mich.; and that the postage was prepaid thereon. By the records it further appears that on March 2, 1885, the court found and adjudged that said defendant had been regularly served with process by publication of the summons heretofore ordered; that, defendant having failed to appear and answer, default was duly entered against her; and, further, that the cause coming on for hearing before the court upon testimony, the material allegations of the complaint were found to be true, and a final decree of divorce was granted. To reverse this decree this writ of error is prosecuted.

The first assignment of error is that the complaint does not state facts sufficient to constitute a cause of action. The complaint mentions two statutory grounds for divorce,--willful desertion without any reasonable cause for the space of one year, and extreme cruelty. Even if it be admitted that the charge of extreme cruelty is technically insufficient, still the charge of willful desertion fixes clearly the time of desertion, and its continuation for a period of one year prior and up to the commencement of the action; so we think the complaint sufficient in substance. In passing upon this question it is enough to say that, if the court can gather from the complaint requisite facts sufficient to constitute a cause of action, the complaint will be held sufficient. Bliss, Code Pl. § 425; Marix v. Stevens, 10 Colo. 261, 15 P. 350.

The second error assigned, to the effect that the affidavit of non-residence of the defendant is not upon the positive oath of the party making it, is met by the supplemental record, whereby it appears that the party positively avers upon oath that the defendant is a non-resident.

The third error assigned is that the order for publication does not designate the paper in which the summons is directed to be published, as the one most likely to give notice to the defendant, as the Code provides. The order was to the effect that service of summons in the above action be made by publishing the same once a week for four successive weeks in the Las Animas Leader, a weekly paper published regularly in this state, and that a copy of said summons be deposited in the post-office at West Las Animas, addressed to the defendant at her last-known place of residence. In the absence of anything to the contrary, we are warranted in assuming that the Las Animas Leader was designated because it was a paper most likely to give the notice to the person to be served; and as the supplemental record discloses the fact to be that the Las Animas Leader was a public newspaper published in Bent county, in the town of Las Animas, the county-seat of said county, we think there was sufficient compliance with the statute.

The fourth assignment, that the order of publication does not direct that a copy of the summons be forth with deposited in the post-office, addressed to the defendant at her place of residence, is without force. We cannot think it necessary that the order should contain this direction in haec verba. The language of the Code is: 'In case of publication, where the residence of a non-resident or absent defendant is known, the clerk thereof shall also direct a copy of the summons to be forthwith deposited in the post-office, directed to the person to...