Irwin v. Irwin

• Decision Date: 08 September 1894
• Citation: 37 P. 548,2 Okla. 180,1894 OK 29
• Parties: IRWIN v. IRWIN.
• Court: Oklahoma Supreme Court

37 P. 548

2 Okla. 180, 1894 OK 29

IRWIN v. IRWIN.

Supreme Court of Oklahoma

September 8, 1894

Syllabus by the Court.

1. By the act of congress ratifying sectin 7, art. 31.c. St. Okl the probate corts were vested with jurisdictiion to hear and determine actions for divorce.

2. A complaint in divorce proceedings which alleges "that on or about February, 1892, and on deivers other occasions prior and subsequent thereto, defendant was fulty of cruel an inhuman treatment to the plaintiff, in this, to wit, slapped said plaintiff; that for a long time past said defedndant has cursed and abused said plaintiff by calling her vile names and that defendant fails, refuses, and neglects to provide for the plaintiff and children according to his station in life,"- held sufficient in the absence of a motion to make more definite and certain.

3. Section 16, art. 31, c. 70, St. Okl., provides for issuing an order, without bond, disposing of the property of the parties pending divorce proceedings.

4. Where the judge of a probate court adjourns the court without fixing in the order of adjournment any time at which such court shall reconvene, held that such an order precludes thec ourt from againi convening until the time fixed by law for the next regular sessinof court.

5. The act of congress ratifying the law of the terotorial legislature granting to probate courts jurisdiction in actions for divorce was in the nature of permissivwe legislation, and did not take from the legislature the power to repeal such act.

6. The legislature of Oklahoma having repealed the law which have the probate courts jurisdiction in actions for divorce held, that such repeal divests probate courts of jurisdiction in such actions. Scott, J., dissenting.

Appeal from probate court, Payne county. Action by Eliza Jane Irwin against Lorenzo Irwin for a divorce. From a judgment and decree for plaintiff, defendant appeals. Reversed.

January 14, 1893, Eliza Jane Irwin commenced proceedings before the probate judge of Payne county for divorce and alimony. The complaint filed in said cause is as follows: "In the Probate Court in and for Payne County, Territory of Oklahoma. Eliza Jane Erwin, Plaintiff, v. Elonzo Erwin, Defendant Complaint: That the plaintiff is now, and has been for more than two years last past, a bona fide resident of the territory of Oklahoma, and is now a bona fide resident of the county of Payne. That the plaintiff and defendant were duly married on the 14th day of March, 1883, and lived together till January 7, 1893. That on or about February, 1892, and on divers other occasions, prior and subsequent thereto, said defendant was guilty of cruel and inhuman treatment to said plaintiff, in this, to wit, slapped said plaintiff. Plaintiff further alleges that, for a long time past, said defendant has cursed and abused said plaintiff by calling said plaintiff vile names. Plaintiff further alleges that said defendant failed, refused, and neglected to provide for said plaintiff and her minor children according to his station in life. That said plaintiff and defendant have had born to them as the fruit of their marriage three children, whose names and ages are as follows: Louis Walter, aged six years; Leroy Edmond, aged four years; Lela Pearl, aged one year. That the defendant is not a fit person to have the care, custody, and education of said children. That said plaintiff and defendant separated on the 8th day of January, 1893, and have not lived or cohabited together. That the defendant is the owner of personal property of the value of six hundred dollars. Wherefore plaintiff prays that the bonds of matrimony heretofore existing between said plaintiff and defendant be dissolved and held for naught, and that said plaintiff be granted a divorce, and that she be given the care, custody and control of the minor children, and that she have judgment for $300 alimony, to be paid as the court may direct, and such other and proper relief as to the court may appear just and equitable." The foregoing complaint was duly verified, and on the same day plaintiff filed her affidavit in the cause, stating, in substance, that the defendant was the owner of certain personal property, consisting of six head of horses, one span of mules, one jack, one jenny, two milk cows and calves, together with household goods, all of the aggregate value of $600; that she was without means to support herself and children; that defendant had entirely abandoned her and the children, and refused to contribute to their support; that she had a meritorious cause of action against defendant; and that defendant was threatening toconvey away his said property, for the purpose of preventing her from collecting her alimony and preventing her from collecting any judgment she might secure in the action for alimony. She also prayed for an order enjoining defendant from selling or disposing of his property until the final determination of the suit. A summons was duly issued upon the complaint, entitled as follows: "Eliza Jane Erwin, Plaintiff, v. Elorenzo Erwin, Defendant;" and on the face of the summons the defendant is designated as "Elorenzo Erwin," and he is directed to appear and answer to the complaint on the 16th day of February, 1893, and, unless he so appear and answer, that judgment for a decree of divorce and $300 alimony, statutory attorney's fees, and costs will be rendered against him. Upon the back of the summons appears the certificate of the officer showing service on the 19th day of January, and designating defendant as "Elonzo Erwin." On January 14th, the same day upon which the complaint and the affidavit for injunction were filed, it appears from the record that the probate judge issued an order allowing a sum of money (the amount not appearing) for the support of plaintiff and her children during the pendency of the action, and also enjoined defendant from selling or disposing of any of his property during the pendency of the action. February 16th the defendant appeared, and filed a motion as follows: "Now comes Lorenzo Irwin, for the purpose of making this motion, and for no other purpose whatever, and moves the court to desist from entering any order or decree or judgment against him in the above-entitled action in every particular wherein the same is intended to affect him, the said Lorenzo Irwin, for the following among other reasons, to wit: (1) Because this court has no jurisdiction in action to obtain a divorce; (2) because nothing appears in any of the pleadings on file in the above-entitled cause to authorize or give jurisdiction to any court to entertain a proceeding for divorce; (3) because the pretended summons or process in the above-entitled cause is a nullity in its terms, conditions, and requirements, and does not warrant a court to entertain jurisdiction of any divorce matter thereunder; (4) because all orders made and process issued in the above cause have been so made and issued contrary to law, as appears upon the pleadings on file therein; (5) because there is nothing in any of the pleadings, files, or process herein to authorize this court to make any order or decree or judgment as against him, the said Lorenzo Irwin." This motion was duly signed by George P. Uhl, attorney for Lorenzo Irwin; and, after consideration, the same was by the court overruled. No further or other appearance was made before the probate judge by the defendant; and after passing upon the motion of defendant, which ruling occurred on February 18th, the record discloses the following order: "Be it remembered that now, at this time, 4 o'clock p.m., Feb. 18, 1893, there being no further business before the court, it is ordered and adjudged that this court be, and the same is hereby, adjourned. Attest, February 18, 1893: Chas. W. McGraw, Clerk." February 20th the plaintiff obtained leave, and filed an amended complaint, which corrected the names of both plaintiff and defendant, and, as corrected, they read "Eliza Jane Irwin" instead of "Eliza Jane Erwin," and "Lorenzo Irwin" instead of "Elorenzo Erwin," and on the same day called the case for trial, and proceeded to hear and determine the questions involved. Judgment was rendered for plaintiff, granting her a divorce and the care, custody and control of the children, also decreeing plaintiff alimony, six head of horses, one span of mules, one wagon and double harness, one-half of a stack of hay, and all household goods belonging to both plaintiff and defendant. There appears in the judgment rendered a finding to the effect that defendant was commonly known by the names of "Lorenzo Irwin," "Elonzo Irwin," and "Elorenzo Irwin," and that his surname was commonly spelled "Erwin" and "Irwin." In the record also appears an order as follows: "Be it remembered that now, at this time, February 20, 1893, the probate court in and for said county of Payne was duly convened by order of court at the hour of 2 o'clock p.m.," etc. "Among the proceedings actually had were the following, to wit." Then follow the minutes showing the trial and judgment in the case here under consideration. Upon the record, as thus presented, the defendant below brings the case here for reversal, and assigns error as follows: (1) The probate judge had no jurisdiction in actions for divorce. (2) The complaint fails to state a cause of action for divorce. (3) The injunction was improperly issued, there being no notice or bond. (4) The court was not in session at the time the divorce was granted, the same having been adjourned for the term prior thereto. (5) The original proceedings were not against plaintiff in error.

George P. Uhl, for appellant.

W. B. Williams and Robt. A. Lowrey, for appellee.

DALE, C.J. (after stating the facts).

We think the probate court had...