Diebold v. Diebold
| Decision Date | 08 February 1926 |
| Docket Number | 11073. |
| Citation | 79 Colo. 7,243 P. 630 |
| Parties | DIEBOLD v. DIEBOLD. |
| Court | Colorado Supreme Court |
Department 2.
Error to District Court, Gunnison County; Thomas J. Black, Judge.
Suit for divorce by Erville S. Diebold against William E. Diebold in which defendant counterclaimed for annulment of marriage. Interlocutory decree for plaintiff was entered by default and defendant filed motion to set aside findings of fact and conclusions of law on grounds of excusable neglect, From the judgment denying a motion to set aside the decree, defendant brings error.
Affirmed.
Frank L. Hays and J. W. Kelley, both of Denver, for plaintiff in error.
Stone & Kochevar and Clifford H. Stone, all of Gunnison, for defendant in error.
The parties to this action appeared in reverse order in the trial court, and we shall designate them here as in the lower court.
Plaintiff brought suit for divorce, charging the defendant with extreme and repeated acts of cruelty. The answer denied the principal averments of the complaint and alleged that the plaintiff had a former husband living at the time of her marriage to the defendant and prayed for an annulment of her marriage to him. The amended replication set forth the proceedings by which she was granted a divorce from her former husband, Wilkins in the district court of Denver, wherein findings of fact and conclusions of law were regularly found and entered of record, and a decree of divorce entered nunc pro tunc as of November 2, 1920, being prior to her marriage to the defendant on March 4, 1921. To this amended replication defendant demurred, which was heard and overruled by the trial court. The defendant and his attorney lived in Denver. The cause being at issue, it was duly noticed for trial on the merits and placed on the trial calendar for the September term, 1923. The September term opened September 17, 1923. The case was regularly reached on the trial calendar on September 18, 1923, and was tried on that day in the absence of the defendant and his attorney.
Section 194 of the Code provides that----
'When a cause is regularly reached upon the calendar, either party may bring the issue to a trial or to a hearing; and in the absence of the adverse party, unless the court for good cause otherwise direct, the party appearing may proceed with his case and take a finding, verdict or judgment, or dismissal of the action, as the case may require.' On September 20, 1923, defendant filed a motion, with supporting affidavits to set aside the findings of fact and conclusions of law made by the trial court, on the ground of excusable neglect. The plaintiff filed counter affidavits. The court denied the motion to set aside its interlocutory decree, and the defendant comes here and assigns error.
The defendant sought to excuse his failure and the failure of his attorney to appear at the trial by showing that his attorney had four cases set for trial in the county court in the city and county of Denver on the same day that the trial was had in the district court, and made the further showing, by affidavit, that a deputy clerk of the county court had informed his attorney that he, the deputy, was of the opinion that the judge of the county court would not grant the attorney a continuance of the cases in that court. The record shows that no application was made for a continuance of the cases in the county court, or of the case in the district court. The defendant, as well as his attorney, knew that the case was on the trial calendar of the district court ad might be called for trial at any time on the 18th of that month but neither the defendant nor his attorney was in attendance on that day, nor did the attorney inform the court in any manner whatever of his professional engagements in another court, or apply for...
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Patton v. Denver Post Corp.
...courts have discretion to enter nunc pro tunc orders and those orders may not be impeached collaterally. Id. (citing Diebold v. Diebold, 79 Colo. 7, 243 P. 630 (1926)). This is so even in the case of postmortem orders entered nunc pro tunc to a date before the affected party's death. In In ......
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In re Estate of Becker
...to enter nunc pro tunc orders in dissolution of marriage actions and such orders may not be impeached collaterally. See Diebold v. Diebold, 79 Colo. 7, 243 P. 630 (1926). According to Fasi, the nunc pro tunc language was ineffective under C.R.C.P. 58(a), which provides in relevant part [U]p......
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In re Marriage of Lafaye, 01CA1210.
...cases cited by wife are distinguishable and are based on other policy considerations not relevant here. For example, in Diebold v. Diebold, 79 Colo. 7, 243 P. 630 (1926); Perdew v. Perdew, 99 Colo. 544, 64 P.2d 602 (1936); and In re Estate of Becker, 32 P.3d 557 (Colo.App. 2000),aff'd sub n......
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In re Sullivan's Estate
...relief, or upon the code provision, the granting or refusing of the application is discretionary with the trial court. Diebold v. Diebold, 79 Colo. 7, 243 P. 630; 68 1139, § 965(c). To warrant interference by an appellate court a gross abuse of discretion must appear. Donald v. Bradt, 15 Co......