Minnear v. Minnear, 17495
| Decision Date | 21 March 1955 |
| Docket Number | No. 17495,17495 |
| Citation | 281 P.2d 517,131 Colo. 319 |
| Parties | Clyde W. MINNEAR, Plaintiff in Error, v. Edna M. MINNEAR, Defendant in Error. |
| Court | Colorado Supreme Court |
Radinsky, Kripke & McLean, Denver, for plaintiff in error.
No appearance for defendant in error.
This action involves the validity of an order of dismissal of a petition filed by plaintiff, now plaintiff in error, to set aside and declare void a purported property settlement agreement entered in, and made a part of, a divorce decree between plaintiff and his wife on August 25, 1950 in the court of record of Escambia county, Florida, by the terms of which plaintiff was ordered to pay permanent alimony in the sum of $250 per month so long as his wife remained unmarried or as long as plaintiff remained on active duty in the United States navy. In the present action plaintiff alleges that the property settlement was obtained by defendant through trickery, fraud, deceit, undue influence and overreaching, and therefore is totally void, and prays the court for an order setting aside the alleged property settlement agreement and declaring the same to be totally void.
At the time of filing the motion or petition here, it was accompanied by exemplified copies of all the written pleadings, court orders, judgments and decrees entered in the Florida court in connection with the proceeding, and service upon defendant was made by delivering to her copies of the summons and plaintiff's motion or petition, by deputy sheriff of San Francisco county, California, on the 17th day of March 1954. On April 12, 1954, Robert W. Baker, an attorney in Denver, Colorado, filed a motion to dismiss in the following language: 'Comes now the Plaintiff [defendant] by her attorney Robert W. Baker, appearing specially and for purposes of this motion only, and moves the court to dismiss the above styled action for the reason that this court does not have jurisdiction.' On argument of this motion to the court it was sustained and the cause dismissed. A review of this order of dismissal is sought by procuring the issuance of a writ of error from our Court. Plaintiff contends that since our statute gives the district courts of Colorado jurisdiction in such matters, the only problem that remains is that of accomplishing service upon defendant, and argues that the motion, intended as a special appearance, was in law a general appearance of defendant. With this latter contention we agree; however, since we have determined that a dismissal of this action must prevail for reasons later discussed herein, the error in dismissing for lack of jurisdiction will not be, in this case, considered as reversible error. Had defendant's motion been on grounds for lack of jurisdiction of the person it would have been a special appearance; however, when it was directed to the whole jurisdiction of the court, then it included jurisdiction as to the subject matter and constituted a general appearance.
As authority for instituting this action, counsel for plaintiff rely upon the following statute, section 46-4-1, '53 C.R.S.:
'Upon the docketing in a court of competent jurisdiction in this state of exemplified copies of all the written pleadings and court orders, judgments and decrees in a case of divorce, separate maintenance, annulment or for support of minor children, or a wife, or for a combination of the same, entered in any court of competent jurisdiction in any other state or jurisdiction having reciprocal provisions for a like enforcement of orders, judgments or decrees entered in the state of Colorado, whether entered prior or subsequent to the effective date of this article, and upon obtaining jurisdiction by personal service of process, as may now or hereafter be provided by the rules of civil procedure, said court in this state shall have jurisdiction over the subject matter and of the person in like...
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