Israel v. Arthur

• Decision Date: 01 December 1881
• Citation: 6 Colo. 85
• Parties: ISRAEL v. ARTHUR, ADMINISTRATOR.
• Court: Colorado Supreme Court

6 Colo. 85

ISRAEL v. ARTHUR, ADMINISTRATOR.

Supreme Court of Colorado

December, 1881

Error to County Court of Larimer County.

THE case is stated in the opinion.

Messrs WELLS, SMITH and MACON, Messrs. BARNUM and GRAHAM and Mr. C W. McCORD, for the motion.

Messrs HAYNES, DUNNING and HAYNES, contra.

BECK J.

This is a motion to dismiss the writ of error.

The points mainly relied upon in support of the motion are the want of proper parties as defendants in error, and that a writ of error does not lie in a case of this nature.

This writ was sued out by the plaintiff in error to reverse a decree of divorce obtained against her at the June term 1877, of the county court of Larimer county, by her formed husband, John Arthur, since deceased.

The writ of error describes the plaintiff in error as Abbie A. Arthur, now Abbie A. Israel, and the scire facias commands the officer charged with the execution of the writ to summon James B. Arthur, administrator of the estate of said John Arthur, deceased, as defendant in error.

The second objection urged is jurisdictional. Counsel say that inasmuch as the decree of the court below concerned only the marriage relations of the parties thereto, there is no one now, since the decease of the plaintiff below, who can represent him in this relation. That if the decree were to be adjudged erroneous, the lower court would be without jurisdiction to retry the cause, for the reason that the bonds of matrimony have been dissolved by death, and the marriage relation no longer exists between the parties.

If a decree of divorce affected the marriage relation only, there would be great force in the argument; but when it is considered that the decree in this case, as in other cases, affects the property rights of the parties as well as their marital rights, it would seem that the same reasons exist for determining its validity as in civil cases generally, notwithstanding the death of one of the parties, and regardless of the fact that the primary relief sought by the bill and afforded by the decree has been confirmed by death, whose decree is irrevocable.

An examination of the authorities cited on the argument do not appear to support this position of counsel for defendant in error. The authorities agree that the decree may be reviewed, differing only as to the mode of review.

In the case of Watson v. Watson, 47 How. Pr. 240, it was attempted by motion in the court below, with notice to the administrator only, to set aside a decree of divorce after the death of the plaintiff who obtained it, on the ground of fraud and irregularity. An appeal was taken from the order denying the motion to the supreme court. That court held that relief could not be obtained on motion to set aside the decree, and suggested a bill of review, bringing in the heirs at law, and others interested in decedent's real estate, as well as his representatives.

The decree in that case was entered in 1863, the plaintiff died in 1872, and the motion to set aside the decree was filed some time prior to March, 1874, but the date is not given.

The writ of error in New York having been abolished in civil cases by the code, it is not apparent that any other remedy than that suggested by the court existed in such case.

The supreme court of Michigan held, in Shafer v. Shafer, 30 Michigan, 163, that an appeal lay from a decree of divorce after the death of the plaintiff, the appeal having been taken within the time allowed for appeals in chancery cases. Notices were served in that case on the solicitor of record for the complainant in the court below, and the administrator. The court held that, before the appeal could be brought to a hearing, the proper steps must be taken to bring in, as parties, the...