Morris v. Propst

• Court: Colorado Supreme Court
• Writing for the Court: BOUCK, Justice.
• Citation: Morris v. Propst, 98 Colo. 213, 55 P.2d 944 (Colo. 1936)
• Decision Date: 02 March 1936
• Docket Number: 13857.
• Parties: MORRIS v. PROPST.

55 P.2d 944

98 Colo. 213

MORRIS v. PROPST.

No. 13857.

Supreme Court of Colorado

March 2, 1936

Rehearing Denied March 2, 1936.

In Department.

Error to District Court, Logan County; Arlington Taylor, Judge.

Action by Nettie Patterson against T. K. Propst, wherein, after plaintiff's death, defendant filed a motion against Glenn Morris, administrator of the estate of Nettie Patterson deceased, to set aside a decree. To review a judgment, the administrator brings error.

Reversed with direction.

T. E. Munson and John P. Beck, both of Sterling for plaintiff in error.

Sauter & Sandhouse, of Sterling, for defendant in error.

BOUCK Justice.

The question Before us is whether the district court of Logan county erred in setting aside an interlocutory decree of divorce recovered against a husband by his wife, who died within the six months immediately following the entry of the decree.

The divorce action was begun on October 18, 1934. The husband though duly served, did not enter his appearance and interposed no defense. On December 5, 1934, a trial was had and an interlocutory decree of divorce was entered.

On January 31, 1935, the wife died.

On June 1, 1935, more than four months after the wife's death, and five months and twenty-seven days after entry of the interlocutory decree, the surviving husband filed in the divorce action as originally entitled an unverified and unsupported 'motion' to set aside the interlocutory decree, said motion purporting to contain allegations of fact as follows: 'This defendant further shows to the Court that on or about the 31st day of January, 1935, the plaintiff herein died at Sterling, Colorado, and that there is no reason or need for further proceedings in said cause, and that it is the desire of this defendant that the Interlocutory Decree of Divorce heretofore entered in said cause be vacated and set aside.'

The trial court sustained the motion, set aside the interlocutory decree, and dismissed the case at the costs of the administrator. The specific question Before us is whether there is any authority for the filing or granting of such a motion after the death of the other party.

The divorce procedure in Colorado was radically changed by S.L.1933, p. 440, chapter 71. Prior thereto the General Assembly had provided that when a complaining party prevailed at a hearing on the merits there should be entered 'findings of fact and conclusions of law,' obviously after the manner of the procedural basis for equity decrees. But such findings and conclusions did not constitute a judgment or decree. Often, to be sure, they were inaccurately referred to even by attorneys and courts as an 'interlocutory decree.' Nevertheless, they had none of the characteristics of an actual judgment. True, chapter 91 of S.L.1929 (pp. 327, 329) provided that at the end of six months the findings of fact and conclusions of law, unless set aside, should 'operate' as a decree of divorce. By lawyers and courts generally, this phraseology was deemed inadequate to constitute a real decree.

In 1933, however, the General Assembly enacted the following:

'Section 1. * * * If * * * a divorce ought to be granted, the Court shall enter an interlocutory decree, providing that the parties to such action shall be divorced six (6) months after the date of such interlocutory decree. During such six (6) months period the parties shall not be divorced and neither party shall contract another marriage during such period. During such period the Court may, upon motion or petition of either party to the action, or upon its own motion, for good cause shown after a hearing, set aside such interlocutory decree. Such interlocutory decree shall be a final order as of the date of its entry. * * *

'Section 3. Six (6) months after the entry of an interlocutory decree, it shall be and become a final decree of divorce, unless such interlocutory decree shall have been duly set aside, or an appeal has been taken, or a writ of error issued. No other decree shall be needed or required but the Court may enter any other decrees or orders in such action which it may deem proper.' S.L.1933 (chapter 71), pp. 440, 441.

It is evident that the quoted statute gives interlocutory decrees the full sanction accorded to judgments. By the express language used, the mere lapse of time transmutes an interlocutory decree into an absolute or final decree without any further action of the court. The decree thus becomes a real decree, whether it be called interlocutory or final.

This being so, we next inquire what could have been the effect of the abovementioned motion, filed by the husband after the death of his wife, to vacate the interlocutory decree which had been granted to her as the successful plaintiff.

Of course the interlocutory decree was not set aside during the six-month period. No 'petition' in the accepted sense was filed by either of the original parties. An unverified and unsupported 'motion' was indeed filed, as we have seen; but such a motion, in reason and under all the authorities governing in this jurisdiction, was not within the contemplation of the above quotation. It was ineffectual. A motion presupposes a notice to the opposing party. Code, 1921, § 407 (C.L.1921, p. 176). That the attempt to serve notice herein upon the administrator of the wife's estate on June 20, 1935, six months and fifteen days after entry of the interlocutory decree was, for more than one reason, futile, is clear.

A divorce action is a purely personal action which does not survive the death of either party, but, on the contrary automatically abates. A seeming exception, apparent only, arises when such an action involves an issue of property. In that event, of course, the administrator must nor merely be noticed into court, but he must be proceeded against as a party, either by proper substitution or in a separate action; and, where the property issue is thus made, the persons interested as heirs or otherwise must be made parties and given their day in court. Those steps naturally were not taken or attempted here by the husband. In the case at bar neither the divorce pleadings nor the 'motion' nor the interlocutory decree did so much as suggest a property issue. Hence the entire action abated immediately upon the death of the plaintiff wife, and no one thereafter had the right to change the record as it stood at that moment. Holmberg v. Holmberg, 106 Neb. 717, 184 N.W. 134. In the latter case it was a plaintiff husband who died, and his widow thereafter filed a petition to vacate the decree which had been entered against her under a statute similar to our own. The trial court denied the petition. There had incidentally been an alimony...