Clough v. Clough

• Decision Date: 19 December 1899
• Citation: 59 P. 736,27 Colo. 97
• Parties: CLOUGH v. CLOUGH.
• Court: Colorado Supreme Court

59 P. 736

27 Colo. 97

CLOUGH v. CLOUGH.

Supreme Court of Colorado

December 19, 1899

Appeal from court of appeals.

Action by Adelia E. Clough against John A. Clough, Jr. From an affirmance by the court of appeals (51 P. 513) of a judgment in the district court in favor of defendant, plaintiff appeals. Affirmed.

Doud &amp Fowler and Rising & Marshall, for appellant.

Hartzell & Steele, V. A. Elliott, and Willis V. Elliott, for appellee.

Patterson Richardson & Hawkins and Lindsey & Parks, amici curiae.

PER CURIAM.

This case is brought here on appeal from a judgment of the court of appeals. The errors assigned present the question as to whether or not that court was correct in holding that an heir who contests the validity of a will in the probate court is entitled to a jury, as a matter of right, in the trial of such contest on appeal to the district court. The court of appeals, in a very able and elaborate opinion, reported in 10 Colo.App. 433, 51 P. 513, decided that the proceeding, not being an action at law or in equity, was not controlled by the provisions of section 173 of the Code, which designates what issues shall be tried before a jury and what not; and unless controlled by the provisions of section 3508, Gen. St (section 4679, Mills' Ann. St.), it would be governed by the practice that prevailed at common law, under which the heir was entitled to have the issue devisavit vel non tried by a jury. In the view we take of this case, it is not necessary to consider or determine what the practice at common law was in such a proceeding, or whether the court of appeals was correct in holding that, if the constitution and statutes are silent as to the mode of trial such practice would prevail; since, by giving to section 1097, Mills' Ann. St., as amended in 1891, the construction contended for by counsel for appellant, which construction is concurred in by counsel for appellee, the manner of trial in such a proceeding on appeal to the district court is regulated by statutory provisions. Section 1097, Id., provides: 'All questions of law and fact relating to probate matters in any county shall be determined by the county court of such county, and from any and all such decisions upon any such questions appeals * * * shall lie to the district court of the same county, to be prosecuted in the same manner as appeals * * * when prosecuted in civil or law cases from the decisions of such county courts.' If the words 'to be prosecuted,' as used in this section, refer to the conduct or trial of the cause in the appellate court, as well as to the taking and perfecting of the appeal, as contended by counsel, then it only remains to ascertain in what manner appeals in civil or law cases are tried in that court. The manner in which such appeals shall be tried is provided in section 1089 Id., which, inter alia, enacts: 'In all appeals...