Custer v. Custer

• Decision Date: 17 August 1912
• Docket Number: 2358
• Citation: 41 Utah 575,126 P. 880
• Court: Utah Supreme Court
• Parties: CUSTER v. CUSTER

126 P. 880

41 Utah 575

CUSTER v. CUSTER

No. 2358

Supreme Court of Utah

August 17, 1912

On Application for Rehearing October 8, 1912.

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Minnie C. Custer against Ernest L. Custer.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

James D. Pardee for appellant.

Powers & Marioneaux and J. W. McKinney for respondent.

McCARTY J. FRICK, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

Plaintiff brought this action against defendant for separate maintenance on the ground of desertion. The defendant answered, denying that he had deserted plaintiff. He also filed a counterclaim for divorce on the ground that plaintiff, without cause, had deserted him. The plaintiff filed a reply to the answer and counterclaim of defendant, denying the allegations of desertion, and charging the defendant with adultery with one Marie Custer. The court found on the issues thus made up in favor of the defendant, and on the 6th day of December, 1910, rendered judgment in favor of defendant dissolving the marriage relation theretofore existing between the parties. On January 9, 1911, the findings of fact, conclusions of law, and interlocutory decree were filed. On July 20, 1911, the final decree, based on the same findings of fact and conclusions of law as the interlocutory decree, was duly filed and entered of which the plaintiff had notice. On January 10, 1912, plaintiff filed and served notice of appeal to this court.

Respondent has filed a motion to dismiss the appeal, on the ground that it was not taken within six months from the time plaintiff received notice of the finding and entry of the interlocutory decree. No new or additional findings of fact or conclusions of law were made and filed in the case after the filing of the interlocutory decree. Nor does the final decree contain any matter not found in the interlocutory decree. In fact, appellant, by her assignments of error, does not seek to review any matter not contained in the interlocutory decree, or in the findings of fact and conclusions of law upon which it is based.

As we have observed, the interlocutory decree was filed and entered January 9, 1911. The appeal was taken January 10, 1912, more than a year after the filing of that decree. Therefore none of the proceedings leading up to and resulting in the interlocutory decree are before this court for review. The case comes clearly within the doctrine announced in the case of Parsons v. Parsons, 40 Utah 602, 122 P. 907, recently decided by this court. In that case it is said:

"And since plaintiff's appeal is only from the final decree, and since she seeks no review of any proceeding resulting in that decree, and seeks a review only of proceedings resulting in the interlocutory decree, from which no appeal has been, and could not have been, taken at the time of this appeal, it follows that there is no reviewable question before the court."

The appeal in this case having been taken within six months from the time of the filing of the final decree, the motion to dismiss must be overruled; but, as the appeal presents no question for review, the judgment of the lower court is affirmed, with costs to respondent.

FRICK, C. J., and STRAUP, J., concur.

ON APPLICATION FOR REHEARING.

McCARTY J.

Appellant has filed a petition for rehearing. In the petition her counsel vigorously contends that the final decree rendered in the case is not supported by, but is contrary to, the findings of facts upon which it is based; and that the "final decree, as entered by the lower court, should have been in favor of the plaintiff (appellant) and against the defendant." Counsel, in his original brief filed in the case, said: "The assignment of errors specifically mentioned several errors; but one point made for the reversal of the case is based upon the general proposition that the first conclusion of law and the interlocutory and final decree are not supported by the findings of fact." From this we concluded, and in the foregoing opinion stated, that "appellant, by her assignment of errors, does not seek to review any matter not contained in the interlocutory decree, or in the findings of fact and conclusions of law upon which it is based." In the petition for a rehearing, counsel says that appellant "does not seek, nor does she attempt, to review any of the findings of fact, conclusions of law, or interlocutory decree, or proceedings resulting in the interlocutory decree." The claim now made, if we correctly understand counsel's position, is that the final decree is contrary to the court's finding of fact No. 13, which was made and filed in the case several months after the interlocutory decree was rendered and entered. This finding of fact, which in no way changes or modifies the findings of facts upon which the interlocutory decree was based, is as follows:

"There...