Johnson v. Johnson

Decision Date16 December 1895
Citation22 Colo. 20,43 P. 130
PartiesJOHNSON v. JOHNSON.
CourtColorado Supreme Court

Error to district court, El Paso county.

Action by Mary E. Johnson against Timothy E. Johnson for divorce. Plaintiff had judgment, with permanent alimony, which was made a lien on defendant's real and personal estate, and defendant brings error. Modified.

The complaint in this case, which was filed by appellee, Mary E Johnson, in the month of November, 1890, alleges, inter alia the marriage of plaintiff and defendant in the state of Indiana in 1862. The complaint, aside from some general allegations, set up two grounds for a divorce: (1) The desertion of the plaintiff by the defendant on the 30th day of April, 1889. It is averred that said desertion was without reasonable cause or justifiable excuse, and that it has continued from the last-mentioned date to the time of the commencement of this action. (2) As a second ground for a divorce the plaintiff alleges failure on the part of the defendant to support either her or her minor child for the space of upwards of one year, the defendant during that time being in good bodily health. The plaintiff prays that the bonds of matrimony existing between the parties may be dissolved; that she be given the control of their minor child, and that the defendant may be decreed to provide for the support and maintenance of both mother and child; for a temporary writ of injunction restraining defendant from disposing of his property, etc., during the pendency of the action; and that on final hearing the plaintiff may have such other relief as may be proper in the premises. For answer to this complaint the defendant admits the marriage as alleged but denies the desertion; denies failure to support; denies that during the time of which plaintiff alleges nonsupport he was in good health, etc. For a cross complaint and counterclaim the defendant alleges the marriage in 1862; that the plaintiff, unmindful of her marriage obligations, without any reasonable cause or excuse, did, in July, 1889, at the county of El Paso, in the state of Colorado, desert the defendant, and absented herself from him, and has continued to live separate and apart from him for more than one year and so continued up to the time of the commencement of this action. The prayer of this cross complaint is for the dissolution of the marriage ties, and for the custody of the minor son. All the allegations of the cross complaint, except those relating to the marriage, are denied in the replication. The issues thus formed upon the pleas of desertion and nonsupport were submitted to a jury, and both resolved in favor of the plaintiff. A motion for a new trial was overruled, the question of permanent alimony being reserved for future consideration. Afterwards the plaintiff filed a further petition. This petition relates entirely to the question of alimony. It avers that defendant is possessed of property of great value, particularly describing the same, and alleging that this property was accumulated by the joint efforts and industry of plaintiff and defendant; that plaintiff has but little property, this being heavily incumbered. An answer and replication were thereafter filed, the cause coming on to be heard before the court upon the issues thus made upon the question of alimony. The following findings of fact were made and entered of record: (1) That the real and personal property owned by the defendant, Timothy E. Johnson, is of the value of $35,000. (2) That the value of the property, both real and personal, of the plaintiff, Mary E. Johnson, is $17,100, with an incumbrance thereon aggregating the sum of $8,100, leaving her a net balance of $9,000. (3) That the total value of the property of plaintiff and defendant, after paying all debts, is the sum of $44,000. (4) That said property had all been accumulated during the existence of said marriage by the joint industry and frugality of both parties. Upon these findings a judgment was rendered in favor of plaintiff and against the defendant for the sum of $11,159, the same to be paid as follows: $2,000 on or before January 1, 1894; $2,000 on or before January 1, 1895; $2,000 on or before January 1, 1896; $2,000 on or before January 1, 1897; $3,159 on or before January 1, 1898,--the above amounts to draw interest at the rate of 7 per cent. per annum, payable semiannually,--and in addition the costs of the action were adjudged against the defendant. The amount allowed as permanent alimony, and the costs of suit, are made a lien on all property, both real and personal, belonging to the defendant. A decree of absolute divorce was also rendered in favor of the plaintiff upon the verdict of the jury. The defendant brings the case here upon error.

Taylor & Laws and T. A. McMorris, for plaintiff in error.

J. K. Vannatta, J. M. Dorr, and Victor A. Elliott, for defendant in error.

HAYT C.J. (after stating the facts).

There are 16 assignments of error in the record. About one-half of this number refer to rulings of the trial court upon the charge of nonsupport contained in the complaint. The statute in force at the time this case was tried provides that the marriage relation may be dissolved for the following, among other causes: Desertion; nonsupport. In this case the jury resolved the issues made by the pleadings upon each of the above grounds in favor of the plaintiff. Desertion being established, unless overthrown, the judgment of divorce must stand, and therefore a consideration of the charge of nonsupport becomes unnecessary. The statute provides that, in all cases for a divorce, where the defendant shall appear and deny the charges alleged, the same shall be tried by a jury. By this statute the verdict of a jury in a contested case is absolutely essential as a prerequisite for a decree of divorce. The rule, therefore, which prevents appellate courts from overthrowing verdicts based upon a conflict of evidence applies with particular force to divorce proceedings under this statute. A reference to the pleadings discloses that each party charges the other with desertion, alleging that the same had continued for more than one year. It is apparent from this, and also from the evidence, that the parties had been separated for more than one year immediately preceding the institution of the divorce proceedings. The plaintiff alleges that this separation was the fault of the defendant, while the defendant charges that it resulted entirely from the plaintiff's conduct. The issue thus raised having been resolved by the jury and district court in favor of the plaintiff upon conflicting evidence, it is not the province of this court to weigh the evidence, for the purpose of substituting its judgment for that of the court and jury below. A careful reading of the evidence, however, convinces us that the verdict of the jury is right, and if we were at liberty to ignore the verdict, the result would not be...

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13 cases
  • Young v. Colorado Nat. Bank of Denver
    • United States
    • Colorado Supreme Court
    • 2 Octubre 1961
    ...That statutes provide the dimensions for actions for divorce and annulment is more than intimated further in Johnson v. Johnson, 22 Colo. 20, 43 P. 130, 55 Am.St.Rep. 112, and Simmons v. Simmons, 107 Colo. 78, 108 P.2d 871. 'The marriage relation is so sacred in character that it is indisso......
  • Diemer v. Diemer
    • United States
    • New York Court of Appeals Court of Appeals
    • 8 Julio 1960
    ...constitutes abandonment in the eyes of the law. See, e. g., Hayes v. Hayes, 144 Cal. 625, 627, 78 P. 19 (by statute); Johnson v. Johnson, 22 Colo. 20, 23, 24, 43 P. 130; Evans v. Evans, 247 Ky. 1, 7, 56 S.W.2d 547; Benton v. Benton, 197 Md. 373, 379, 79 A.2d 146; Brown v. Brown, 78 N.H. 337......
  • Donaldson v. Donaldson
    • United States
    • Idaho Supreme Court
    • 31 Diciembre 1917
    ... ... 735; ... Edwards v. Edwards, 80 Ala. 97; Blair v ... Blair, 122 Cal. 57, 54 P. 369; Fuller v ... Fuller, 17 Cal. 605; Johnson v. Johnson, 22 Colo. 20, 55 ... Am. St. 113, 43 P. 130.) ... RICE, ... J. Morgan, J., concurs. BUDGE, C. J., Concurring in Part and ... ...
  • Schrader v. Schrader
    • United States
    • Colorado Supreme Court
    • 29 Marzo 1965
    ...is, in our view, no merit in this contention of Charles. Trial courts have inherent power to make their orders effectual. Johnson v. Johnson, 22 Colo. 20, 43 P. 130. C.R.S. '53, 46-1-5(2) (1960 Perm.Supp.) by its general terms 'provides simply that the old remedies may be applied.' Idem. Th......
  • Request a trial to view additional results

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