Myers v. Myers, 15296.

• Decision Date: 01 March 1943
• Docket Number: 15296.
• Parties: MYERS v. MYERS.
• Court: Colorado Supreme Court

135 P.2d 235

110 Colo. 412

MYERS v. MYERS.

No. 15296.

Supreme Court of Colorado, En Banc.

March 1, 1943

Error to Garfield County Court; William Atha Mason, Judge.

Suit for divorce by Helen L. Myers against Donald E. Myers. To review a judgment denying defendant's petition to set aside interlocutory decree in favor of plaintiff, and to permit defendant to answer the complaint, the defendant brings error.

Judgment reversed, and cause remanded with directions to set aside interlocutory decree.

Allyn Cole, of Glenwood Springs, for plaintiff in error.

Carl W Fulghum, of Glenwood Springs, for defendant in error.

YOUNG Chief Justice.

Plaintiff in error was defendant in a divorce action in the county court of Garfield county. He prosecutes a writ of error to reverse a judgment denying his petition to set aside the interlocutory decree entered in plaintiff's favor, and to permit him to answer the complaint. The parties are disgnated herein as plaintiff and defendant, as in the county court.

The controversy resulting in the action and judgment here challenged, arose out of the following situation:

Plaintiff filed her complaint in the county court which was in regular form save that it omitted the jurisdictional allegation as required by section 157, chapter 46, '35 C.S.A., and regularly served defendant with a copy of the complaint and summons in the action.

Defendant did not appear within the time allotted for him to plead and the cause came on for hearing as an uncontested case Before the court. At this hearing, on the application of plaintiff she was permitted to amend her complaint by supplying the lacking jurisdictional averment and following the hearing the court entered an interlocutory decree in regular form in her favor, awarding her the custody of a child fifteen months of age, and ordering defendant to pay support money for the child in the amount of fifteen dollars per month.

There was no prayer for alimony in the complaint and no allowance therefor was made in the interlocutory decree. Before the interlocutory decree became final, defendant moved to set aside the decree setting up several minor grounds which in the light of our disposition of the cause it is not necessary to mention, relying principally upon the proposition that the amendment had been made without notice and without his having an opportunity to plead to the complaint as amended. With this motion he tendered an answer and cross-complaint denying plaintiff's charges and setting up grounds of divorce against her.

Upon the hearing the court modified the decree in such manner that the minor objections heretofore referred to as made by defendant, were obviated, and in the order denying defendant's petition it is set forth that application was made by plaintiff at the time of the hearing to amend the complaint by adding the jurisdictional averment and that such permission was granted. No record was made of such application and grant of permission, and it does not otherwise appear in the record Before us than in the statement of the county judge in ruling on defendant's petition. We assume the factual correctness of the manner in which amendment was effected.

Section 157, chapter 46, '35 C.S.A. is as follows: 'In order to give the said courts jurisdiction in any action, suit or proceeding, the complaint or complaints shall state that the value of the property in controversy or the amount involved, for which relief is sought in such action, suit or proceeding, does not exceed the said sum of two thousand (2,000) dollars. And in all actions for divorce the petition or bill of complaint shall aver that the plaintiff does not ask or seek alimony in excess of the said sum two thousand (2,000) dollars.'

A jurisdictional allegation in effect, as provided by the foregoing statute, is an essential prerequisite to the county court's exercising jurisdiction in such cases. Barndollar et al. v. Patton, 5 Colo. 46; Learned v. Tritch et al., 6 Colo. 432; Bloomer v. Jones, 22 Colo.App. 404, 125 P. 541; Hughes v. Brewer, 7 Colo. 583, 4 P. 1115.

If such an averment is omitted that such defect may be corrected by amendment, was held in the case of Southwestern Land Co. v. Hickory Jackson Ditch Co., 18 Colo. 489, 33 P. 275, and Nelson v. Chittenden, et al., 53 Colo. 30, 123 P. 656, Ann.Cas.1914A, 1198.

Section 3, chapter 56, '35 C.S.A., provides that where the statutes relating specifically to divorce are silent as to the procedure to be followed, the Code of Civil Procedure shall apply. Following this, counsel for both parties assume and we think correctly, that since the Code of Civil Procedure has been superseded by the Rules of Civil Procedure, where the divorce statutes are silent as to any...