Johnson v. Johnson

• Decision Date: 03 November 1902
• Parties: JOHNSON v. JOHNSON.
• Court: Colorado Supreme Court

70 P. 692

30 Colo. 402

JOHNSON v. JOHNSON.

Supreme Court of Colorado

November 3, 1902

Error to Weld county court.

Action by Augusta F. Johnson against William F. Johnson. From a judgment for plaintiff, defendant brings error. Affirmed.

James W. McCrury, for plaintiff in error.

CAMPBELL C.J.

This action to divorce was commenced in the county court of Weld county by defendant in error, as plaintiff below, against plaintiff in error, defendant below. There was no allegation in the complaint that either party ever resided in Weld county; the only averment as to residence being 'that the plaintiff is, and has been, a bona fide resident and citizen of said state of Colorado for a period of more than one year immediately preceding the commencement of the action.' Section 6 of the divorce act (Sess. Laws 1893, p. 236) provides that 'no person shall be entitled to a divorce in this state unless such person shall have been a bona fide resident and citizen of this state for one year prior to the commencement of the action,' and it also says that the suit therefor 'shall only be brought in the county in which such plaintiff or defendant reside, or where such defendant last resided.' Upon issues joined the cause was tried to a jury, and a verdict rendered in favor of the plaintiff, and on the same day the court made an order that a decree for the divorce be entered upon the payment of the costs of the suit by the defendant. Whether such condition as to costs was ever complied with does not appear in the record, and for our present purpose it is not important to know. On the same day defendant filed a motion to set aside the verdict and grant a new trial, and afterwards, and on the 23d of October, 1899, such motion was denied. On the same day defendant filed a motion in arrest of judgment, based principally upon the ground that the necessary jurisdictional facts as to the residence of plaintiff were not set forth in the complaint. On the 25th of October this motion was sustained, but, as expressed by the court, plaintiff's complaint was not dismissed; and on the same day, upon her application therefor, she was granted leave to amend her complaint by suitable averments as to her residence in Weld county, the court specifically finding that on the trial she proved that she was, when the suit was begun, and for more than a year immediately preceding had been, a bona fide resident and citizen of Weld county, Colo. Afterwards, and on the 30th of October, the complaint was amended by inserting therein the necessary allegation, and in open court the pleading, as amended, was verified by plaintiff. The final decree was signed and entered of record November 3, 1899. Apparently no further action was taken with respect to the setting aside of the order arresting the judgment. To the orders made against defendant, objections were made and exceptions saved, and he has brought the case here by writ of error. The questions for decision, then, are whether the amendment to the complaint was such as the court might authorize to be made, and whether the court had the power, in the circumstances of the case, to make the order permitting such amendment after verdict.

1. In the argument of plaintiff in error it is contended that under our divorce statute the residence of a plaintiff or a defendant is a jurisdictional question, and that the court cannot proceed to a decree unless the complaint shows that the county in which the suit...