Israel v. Arthur

• Decision Date: 17 January 1893
• Citation: 18 Colo. 158,32 P. 68
• Parties: ISRAEL v. ARTHUR. [1]
• Court: Colorado Supreme Court

32 P. 68

18 Colo. 158

ISRAEL v. ARTHUR. ^[1]

Supreme Court of Colorado

January 17, 1893

Error to Larimer county court.

Action by Abbie A. Israel against James B. Arthur, administrator of the estate of John Arthur, deceased, to establish her right to the estate of deceased, as widow and sole surviving heir at law. Defendant had decree, and plaintiff brings error. Affirmed.

For former reports, see 1 P. 438, 7 Colo. 5; 25 P. 81, 15 Colo 147.

Syllabus by the Court

In the county court, petitioner asked to be recognized as the widow of one A., deceased. The evidence showed that she had repeatedly declared that she was married to a second husband before the death of A., her first husband. Petitioner and her second husband admitted on the trial that they had lived and cohabited with each other, and held themselves out to the public, as husband and wife, in the communities where they had so lived, prior to the death of the first husband. Held, that the proof was sufficient to warrant the trial court in finding that plaintiff in error had actually contracted and consummated the marriage between herself and the second husband before the death of the first, and so was debarred from claiming as the widow of her first husband. The case of Arthur v. Israel, 25 P. 81, 15 Colo. 147, followed as the law of this case.

Decker & O'Donnell, for plaintiff in error.

Robinson & Love, V. D. Markham, and E. A. Bullard, for defendant in error.

PER CURIAM.

This cause, in different phases, has been several times before this court. In Israel v. Arthur, 7 Colo. 5, 1 P. 438, the decrees of the county court whereby John Arthur undertook to obtain a divorce from his wife, Abbie, were held to be void for want of jurisdiction. The matter then considered by the court was limited to the question of the validity of said decrees, as they appeared of record; and upon the face of the record, without more, the decrees were held insufficient to debar Mrs. Israel from asserting her claim as widow and hier to John Arthur, deceased. The next time the controversy came before this court (Arthur v. Israel, 15 Colo. 147, 25 P. 81) the question presented arose upon the demurrer by Mrs. Israel to the amended answer of the administrator, James B. Arthur resisting her petition to be recognized as the widow and heir of John Arthur. The amended answer set up a new state of facts in connection with said decrees of divorce. The new facts showed Mrs. Israel in a new light, and, in the opinion of the court, gave her a different legal status in relation to the controversy. Upon mature consideration, the amended answer was held to be sufficient in law to debar or estop her from claiming any property rights as the widow of the said John Arthur, deceased. The court did not change its views of the law as to the facts appearing of record in 7 Colo. and 1 P. Rep., supra, but simply declared the law applicable to the new state of facts introduced into the record by the amended answer, as admitted by the demurrer. John son v. Bailey, 17 Colo. ----, 28 P. 81; Dodge v. Gaylord, 53 Ind. 369. Upon the remanding of the cause of the county court, Mrs. Israel filed a replication to the amended answer and upon the issues thus formed a trial was had, resulting in a finding and judgment adverse to her petition. She now brings the record to this court, and assigns error, to the effect that the finding and judgment of the county court are against the evidence, and contrary to the law.

Upon the record now presented, according to the plainest principles governing appellate procedure, the only question for us to determine is whether the evidence upon the last trial was competent to prove the allegations of the amended answer. The court having, by its opinion in 15 Colo. and 25 P. Rep., supra, held the amended answer sufficient in law, and the cause having been again tried by the county court in accordance with that opinion, that court, as well as the county court, must regard that opinion as 'the law of the case,' so far as the matters and things alleged in said amended answer were established, by competent evidence, to be the true facts of the case. Lee v. Stahl, 13 Colo. 174, 22 P. 436; Routt v. Cemetery Co., 18 Colo. ----, 31 P. 858.

From the record the following facts appear to be undisputed, (the dates are material to the understanding of other portions of the evidence:) In 1859 plaintiff in error was married to John Arthur. For some years, and up to 1873, she lived with Arthur at or near Ft. Collins, Colo. James H. Israel was in the employ of Arthur for about three years prior to 1873, when he went to Iowa. In the latter part of 1873 plaintiff in error left her husband, and joined Israel, and thereafter lived and cohabited with him in Iowa, Missouri, and Kansas, and in southern Colorado, several hundred miles from Ft. Collins. On February 9, 1875, a decree of divorce was entered by the probate court of Larimer county in favor of said Arthur against the present plaintiff in error; and on June 12, 1877, a second decree of divorce, of like import, was also entered in the same court. John Arthur died April 16, 1878. Other evidence was produced, as follows: Mrs. Elizabeth Sweeney, of Ft. Collins, wife of the former sheriff, testified that in 1881 Mrs. Israel told witness that she had been married to Israel three times; that the first was a sham marriage, that the second time was after she heard that Arthur had got a divorce from her, and that the third time was after Arthur died. Witness testified that these statements were made at her house, in Ft. Collins, in 1881, during the occasion of the first trial of this cause, but that witness did not communicate them to counsel for the administrator for some years afterwards. Mrs. Duncan, mother of Mrs. Sweeney, testified that, during the occasion of said first trial, Mrs. Israel told witness that she had been married twice to Mr. Israel. Witness did not remember having communicated this statement of Mrs. Israel to any one but her daughter, Mrs. Sweeney. Mrs. Elizabeth Rogers, of Weld county, an aged lady, testified that she had been acquainted with John Arthur and his wife, Abbie, for many years; that she saw Mrs. Israel at Ft. Collins in 1881, when she came to attend the trial; that Mrs. Israel stayed at the house of witness for several weeks during that time; that Mrs. Israel told witness that she had been married twice to Mr. Israel; that the marriage was after the divorce took place. Witness understood that Mrs. Israel, instead of her first husband, was the applicant for the divorce. Witness further...