Daniels v. Daniels

• Decision Date: 09 April 1886
• Citation: 9 Colo. 133,10 P. 657
• Court: Colorado Supreme Court
• Parties: DANIELS v. DANIELS.

10 P. 657

9 Colo. 133

DANIELS v. DANIELS.

Supreme Court of Colorado

April 9, 1886

Appeal from district court, Arapahoe county.

Patterson & Thomas and Benedict &amp Phelps, for appellant, William B. daniels.

Rucker & Ewing and Teller & Orahood, for appellee, Lilyon B. Daniels.

BECK C.J.

The purpose of the action instituted in the district court by the plaintiff, Lilyon B. Daniels, against her husband, William B Daniels, and now pending therein, as shown by the prayer of the complaint, is to obtain a decree annulling the articles of separation entered into by the parties upon the sixteenth day of January, 1883, and to compel the defendant to pay the plaintiff the sum of $25,000 annually as permanent alimony. A separate petition was filed in said cause praying for alimony pendente lite, to which an answer was filed by the defendant, and the issues therein formed submitted to the court. The court thereupon ordered and adjudged that the defendant pay into court, for the use of the plaintiff, the sum of $1,000,--$700 thereof being for the use of her counsel as their solicitors' fees, $300 thereof for her use in procuring testimony, witnesses, and other expenses incidental to the prosecution of her suit,--and the further sum of $75 a month as alimony pendente lite until the further order of the court. From this decree the defendant appealed to this court. The defendant also demurred to the original complaint, which demurrer the court overruled, and thereupon defendant appealed from the order overruling the demurrer. Both of these appeals are now submitted for the consideration and judgment of this court.

The first question to be considered is the regularity of these appeals. The appeals are taken under the act of the legislature approved April 23, 1885, (Laws 1885, p. 350,) and it is alleged by counsel for appellee that in the taking of said appeals the statute was not complied with on the part of the appellant; consequently that neither of said appeals can be entertained by this court.

The decree for alimony pendente lite was made October 12, 1885. The objection to the regularity of this appeal is that no copy of the notice of appeal was served on the plaintiff or her attorneys; and the objection to the appeal from the order overruling the demurrer to the original complaint is that the notice of appeal was served on the plaintiff's attorneys nine days before the original notice was filed in the clerk's office of the court below.

Section 8 of the act referred to provides as follows:

'An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice of appeal on the adverse party or his attorney.'

In so far as the objection relates to the appeal from the order overruling the demurrer it appears to be well taken. The statutory provision above quoted does not differ materially as to the mode of taking an appeal from the provision appearing in section 339 of the Code of 1877, except that the latter section requires, in addition to the filing of notice and service of the same on the adverse party or his attorney, the execution of a bond. In the case of Alvord v. McGauhy, 4 Colo. 97, the notice of appeal was not filed in the office of the clerk until two days after a copy of said notice was served upon the attorney of the appellee. In that case the court say: 'In taking an appeal the first essential act, without which it will have no validity, is the filing of the notice thereof. Unless the filing of the notice either precedes or is contemporaneous with the service thereof, it will be ineffectual.' In Bacon v. Lamb, Id. 474, it was held if the service of the notice and the filing thereof in the clerk's office were on the same day, the acts will be presumed to have been contemporaneous. In California, under a similar statutory provision, it was held that 'the filing of the notice of appeal is made a constituent element of its character as a notice, and, consequently, must precede or be contemporaneous with the service of a copy of the notice on the adverse party; otherwise that which may purport to be a copy of a notice or duplicate thereof fails to be such for the want of an original.' Buffendeau v. Edmondson, 24 Cal. 94. These authorities, and the phraseology of the statute itself, are decisive of the objection raised to the regularity of the appeal from the order overruling the demurrer. The statute not having been substantially complied with, the appeal from that order cannot be considered.

In respect to the order or decree for alimony pendente lite and suit money, the objections urged as to the irregularity of the appeal from this order do not exist. The original transcript filed in this court shows that this order was made October 12, 1885, and that notice of appeal therefrom was filed in the clerk's office, and a copy thereof served on the attorneys of the appellee, upon the same day,--October 12th. The omissions relied upon appear in the abstract only,--not in the transcript. Another objection urged to the validity of this appeal is that no exception to the ruling of the court granting alimony pendente lite was reserved by the appellant. This is also a mistake, as is fully shown by the bill of exceptions, signed by the judge, and made a part of the record in the cause, wherein occurs the following: 'To which ruling and decision of the court in allowing, decreeing, ordering, and adjudging said support, maintenance, counsel fees,' etc., 'aforesaid, the defendant, by his counsel, then and there excepted.'

But it is contended upon other grounds that no appeal lies from this order or decree: (1) Because it was made in an equitable action, and was 'a discretionary order;' (2) because an appeal does not lie from such order under the statute of 1885.

The proposition that the order was discretionary, and for that reason not appealable, assumes one of the main points in controversy, namely, that the court had jurisdiction to make the order. If it be true that orders of this nature are within the discretion of the court in divorce cases, it determines nothing in a case like this, where a divorce is no part of the relief sought, and the jurisdiction of the court is challenged on that ground. Whether or not such an order, even in divorce cases, in purely discretionary and not reviewable admits of grave doubts, under recent decisions.

The cases cited by appellee in support of the proposition that no appeal lies in this case throw but little light upon that question. They are principally cases relating to interlocutory judgments for costs; as in the case of Briggs v. Vandenburgh, 22 N.Y. 467, wherein it was held that under the provisions of the Code, in an action prosecuted or defended by a receiver, costs may be recovered as in an action against a person prosecuting or defending in his own right; and that the 'court may, in its discretion, in cases mentioned in the section, require the plaintiff to give security for costs;' and that no appeal lies from such order. So, also, in Briggs v. Bergen, 23 N.Y. 162, it was held that no appeal lies from the supreme court from an order striking out a sham answer under the section providing that 'sham and irrelevant answers may be stricken out on motion, and upon such terms as the courts in their discretion impose.' In Walker v. Spencer, 86 N.Y. 162, an appeal appears to have been taken from certain portions of an interlocutory judgment allowing costs and expenses to one of the parties on the overruling of a demurrer. In this case the appeal was dismissed on the ground that while an appeal lies in such cases to the supreme court, it does not lie to the court of appeals. Smith v. Rathbun, 88 N.Y. 660, was also a case of an interlocutory order entered upon overruling a demurrer to the complaint, from which an appeal was taken. The appeal in this case seems to relate to the form of the order, and the court say: 'This is, therefore, a mere controversy as to the form in which the supreme court shall express its decision; that is a controversy to be settled by that court, and not appealable to this court.' Marble v. Bonhotel, 35 Ill. 240, holds that the granting of a temporary injunction is a matter of sound discretion, and cannot be reviewed upon appeal. In Richards v. Burden, 31 Iowa 305, it was held that an appeal to the supreme court did not lie from the ruling of the court below upon the admission or exclusion of evidence, but that the question may be presented on an appeal upon the final disposition of the cause. In Forrest v. Forrest, 25 N.Y. 518, the appeal was from part of a judgment for divorce fixing the plaintiff's alimony; and while it was held that the authority of the court was discretionary as to the amount of the alimony, and from what date it should commence, yet the appeal appears to have been entertained for the purpose of ascertaining whether the power had been arbitrarily exercised. The court say: 'There is no other rule or criterion to guide than the boni viri arbitrarium; and as it is a judicial, and not an arbitrary, discretion to be exercised, we do not say there may not be an appeal from such an order.' Upon the question of our jurisdiction to entertain this appeal the authorities cited in support of the views of appellee's counsel are not sufficiently analogous to the proceedings before us to warrant its summary dismissal.

We will now consider the following questions: (1) Is the order allowing temporary alimony and counsel fees such an order or decree as may be appealed from under section 1, Code Amend. 1885? (2) If appealable, did the court below have jurisdiction to enter the judgment or...