Chamberlain v. Chamberlain

• Decision Date: 06 October 1919
• Docket Number: 9632.
• Citation: 66 Colo. 562,185 P. 354
• Parties: CHAMBERLAIN v. CHAMBERLAIN.
• Court: Colorado Supreme Court

185 P. 354

66 Colo. 562

CHAMBERLAIN v. CHAMBERLAIN.

No. 9632.

Supreme Court of Colorado, En Banc.

October 6, 1919

Rehearing Denied Dec. 1, 1919.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Action by Eugenia B. Chamberlain against William J. Chamberlain. Decree for plaintiff, and the defendant brings error.

Writ of error dismissed.

James J. Sullivan, of Denver, for plaintiff in error.

Thomas Ward, Jr., and De Weese & McPhail, all of Denver, for defendant in error.

ALLEN, J.

This is an action for divorce. The plaintiff below prevailed in the trial court, and obtained a decree which, in addition to granting a divorce, awarded to her a certain sum of money as permanent alimony. The defendant below seeks a review by this court of certain rulings, orders, and the decree of the trial court in the matter of permanent alimony. The plaintiff defendant in error here, has filed a motion to dismiss the writ of error.

It appears from the record that the plaintiff in error, against whom a decree of divorce has been granted in this cause, did not, at any time, file with the clerk of the trial court the written notice described and provided for in section 12, c 65, of the Session Laws of 1917, as follows:

'No writ of error shall be taken or allowed or prosecuted from the Supreme Court to review a judgment or decree of any court in an action for divorce, except at the time and in the manner hereinafter set forth, to wit: If the party against whom a decree of divorce has been granted shall file, within five days from the day on which such decree was granted, with the clerk of the court a written notice that he or she will apply within sixty days from the date of said decree to the Supreme Court, for a writ of error to review the said decree then a writ of error may issue from the Supreme Court on proper application therefor within sixty days from the date of said decree but not thereafter, to review any and all of the proceedings and decree of the trial court.'

The motion to dismiss the writ of error is made upon the ground that the plaintiff in error has failed to file the written notice above referred to, and that therefore this court is without jurisdiction to review any of the proceedings in this case.

When notice of such character, as that above described is required by statute as a prerequisite to the issuance of a writ of error from an appellate court, and the statute is not complied with in this respect, the appellate court is without jurisdiction to review any proceedings, judgment, or...