Garrett v. State

Decision Date11 April 1929
Docket Number26591
Citation224 N.W. 860,118 Neb. 373
CourtNebraska Supreme Court

ERROR to the district court for Box Butte county: EARL L. MEYER JUDGE. Reversed.


Syllabus by the Court.

The provision of the statute that no suit for divorce shall be heard or tried for a period of six months after service has been had or perfected is a limitation upon the power of the court and any divorce granted within the period so prescribed is without authority of law and void.

The period of six months fixed by such statute means calendar months, and in the computation of such time, the statute being a special statute, the rule of strict construction is to be pursued, giving to each and every word of the provision its plain and ordinary meaning. Held, in this case that, since the service of summons was had on the 19th day of October, 1926, the waiting period did not expire until the end of April 19, 1927, and the court was without jurisdiction to render a decree on the latter date.

Where a provision of law is plain and unambiguous in its terms and not susceptible of more than one construction, courts are not concerned with the consequences that may result therefrom but must enforce the law as they find it.

A decree of court which is void for want of jurisdiction may be attacked in any proceeding in which any person seeks to assert a right under it. It may be attacked whenever it is sought to be enforced, or in any suit in which its validity is drawn in question.

Additional Syllabus by Editorial Staff.

Where a certain period of time must elapse before court is vested with power to act, rule is to exclude the first day and include the whole of the last day in said period.

Where divorce decree was void for lack of jurisdiction because entered within six months of service of summons, in violation of Laws 1925, c. 63, amending Comp. St. 1922, § 1520, trial court's failure to sustain objection to wife's testimony against husband, under Laws 1925, c. 75, amending Comp. St. 1922, § 8837, in prosecution against him for murder, was reversible error.

Error to District Court, Box Butte County; Meyer, Judge.

Robert R. Garrett was convicted of murder in the first degree, and he brings error. Reversed and remanded for new trial.

Rose and Good, JJ., dissenting.

Mitchell & Gantz, for plaintiff in error.

O. S. Spillman, Attorney General, Lloyd Dort and P. E. Romig, contra.

Heard before ROSE, DEAN, GOOD, THOMPSON and DAY, JJ., and REDICK and SHEPHERD, District Judges. ROSE, J., GOOD, J dissenting.


SHEPHERD, District Judge.

This is a homicide case, brought here on petition in error from Box Butte county. Plaintiff in error was charged with shooting and killing William Kinsley, maliciously and with premeditation. The case was tried in February of 1928 and resulted in a verdict of murder in the first degree, duly rendered on the 16th day of that month and year. Sentence was to imprisonment for life and was pronounced on the 21st day of the same month.

The said William Kinsley had been riddled with shot and instantly killed as he passed before a window in his farm house about sixteen miles northwest of Alliance on the evening of the 26th day of November, 1927. Mrs. Clara Garrett testified upon trial that she was close to the deceased and that the shot that killed him came through the described window at his back. She testified further that she immediately looked through the window and saw the plaintiff in error outside, gun in hand, and that after pointing said gun at her and making her come out and go with him the latter told her that it was he who had killed Kinsley.

The plaintiff in error took the stand in his own behalf and denied any part in the shooting, denied that he was at the place where the shooting occurred, and denied the story of Mrs. Garrett in toto. He also presented an alibi sworn to by many witnesses in his behalf.

The assignments of error are numerous, relating chiefly to rulings of the court upon trial. Complaint is also made that the verdict and judgment are not sustained by the evidence and by the law, but are alike contrary to the law and to the evidence, and that the evidence disclosed no motive for the crime. A careful survey of the record leads us to conclude that no prejudicial error was committed, save in one instance on the reception of evidence.

The plaintiff in error made timely objection to the testimony of Clara Garrett. The ground of his objection was that she was his wife, both on the date of the commission of the crime and on the date of the trial, whereby she was precluded by law from testifying against him. The language of section 1 (8837) ch. 25, Laws 1925, is as follows: "The husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by the one against the other."

The record discloses that Clara Garrett was married to the plaintiff in error on the 26th day of February, 1908, and had lived with him for many years, bearing him two daughters. She began an action against him for a divorce on the 13th of October, 1926, and service of summons was perfected in that case on the 19th day of October of that year; and on the 19th day of April, 1927, trial was had and a decree of divorce was formally signed. Said decree was filed on the 21st, but it plainly appears that the case was heard, tried and decided on the 19th. Afterward, on the 26th day of November, 1927, as hereinbefore stated, the killing took place.

If the decree in said divorce case was void as rendered before the court had jurisdiction to render it, that is to say, within a period of time less than six months from and after the date on which service of summons was perfected, the objection to the reception of said evidence must be held to have been well taken, and in such case the judgment of the district court must be reversed, unless the divorce law is unconstitutional, or the divorce not subject to collateral attack; for the testimony of Clara Garrett was material and damaging, and must have had its influence upon the jury.

There is, we think, no escape from the conclusion that the divorce was granted a day before it could have been legally granted. When the statute says "months" in a case like this it means calendar months. Brown v. Williams, 34 Neb. 376, 51 N.W. 851. And in a case of this character, where a certain period of time must elapse before the court is vested with power to act, the rule is to exclude the first day and include the whole of the last in said period. It is true that this court has held in connection with the service of summons in justice of the peace courts that the three days' notice required before the defendant is obliged to appear is satisfied by excluding the day of service and including the third day therefrom, so, for example, that when summons is served on the 6th the trial may be had upon the 9th. But the time in question in this case is fixed by special statute, not by the Code, and the Code must yield to the special statute. Calland v. Wagner, 86 Neb. 755, 126 N.W. 375; Comp. St. 1922, sec. 9525. The court expressly said in the case last above cited that section 895 of the Code (Comp. St. 1922, sec. 9521) "is general in its application, and does not control where there is a special provision in a statute directing the method of computing time." The special provision under consideration directed that the justice must render judgment "either at the close of the trial, * * * or on or by the fourth day thereafter, both inclusive;" and the opinion goes upon the theory of strict construction in which each and every word of the law is to be given due meaning and effect. Section 9525, above cited, is in part as follows: "Where, by general or special statute, a civil action, legal or equitable, is given and the mode of proceeding therein is prescribed, this Code shall not affect the proceedings under such statute, until the legislature shall otherwise provide."

Section 1 (1520) ch. 63, Laws 1925, provides: "That no suit for divorce shall be heard or tried for a period of six (6) months after service has been had or perfected." This is a special statute and the precise question as to the proper computation of time where the provision is of this character was determined in McGinn v. State, 46 Neb. 427, 65 N.W. 46, in which the court held, construing the provision of the law to the effect that an enactment of the legislature should only become operative three months after the date of the adjournment of that body, that an amendment by the legislature of 1893 took effect on the 9th day of July following, said legislature having adjourned on the 8th day of April of that year. In an elaborate opinion filed in that case Judge Post said:

"The authorities are not, as will be observed, harmonious upon the question whether the first day--in this instance, the day of the adjournment of the legislature--is to be included in the prescribed period. That question is, however, not an open one in this state. Indeed, it is clear that section 895 of the Code of Civil Procedure, providing that "the time within which an act is to be done as herein provided shall be computed by excluding the first day and including the last,' was intended to establish a uniform rule, applicable to the construction of statutes as well as to matters of practice. * * * It follows that the period of three calendar months after the adjournment of the legislature of 1893 terminated at midnight of the 8th day of July of that year."

It is obvious from this authority that the six months waiting period provided in the divorce statute did not end until midnight of April 19, 1927, and that the court had...

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