Parsons v. Parsons

• Court: Utah Supreme Court
• Writing for the Court: STRAUP, J.
• Citation: Parsons v. Parsons, 40 Utah 602, 122 P. 907 (Utah 1912)
• Decision Date: 08 January 1912
• Docket Number: 2280
• Parties: PARSONS v. PARSONS

122 P. 907

40 Utah 602

PARSONS v. PARSONS

No. 2280

Supreme Court of Utah

January 8, 1912

Application for Rehearing Denied April 17, 1912.

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Jennie B. Parsons against C. C. Parsons.

Judgment for defendant. Plaintiff appeals, and defendant moves to dismiss the appeal.

APPEAL DISMISSED.

Willard Hanson for appellant.

Dey &amp Hoppaugh for respondent.

STRAUP J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

The plaintiff brought this action against the defendant, her husband, for separate support and maintenance. He filed a general denial and a counterclaim for a divorce on the grounds of cruelty and desertion. The court found the issues in favor of the defendant, dismissed the complaint, and granted a judgment on the counterclaim, dissolving the marriage relation. The plaintiff appeals. She assails the findings, both in respect of the issues arising on the complaint and the counterclaim.

A motion is made to dismiss the appeal, upon the ground that the appeal was not taken in time. Our Constitution provides that "from all final judgments of the district court there shall be a right of appeal to the Supreme Court. The appeal shall be upon the record made in the court below, and under such regulations as may be provided by law." Our general appeal statute provides that an appeal from the district court to the Supreme Court "may be taken within six months from the entry of the judgment or order appealed from." A statute (chapter 60, Sess. Laws 1909) amending section 1211, Compiled Laws 1907, provides that all hearings and trials for divorce shall be heard before the court, who, "in all cases in divorce, shall make and file its findings and decrees upon the testimony." Chapter 109 of the same Session Laws, amending sections 1184 and 1212, Compiled Laws 1907, relating to marriage and divorce, provides that:

Section 1: "If after the hearing of any divorce cause the court shall be of the opinion that the divorce ought to be granted, an interlocutory decree must be entered, declaring that the party in whose favor the court decides is entitled to a divorce."

Section 2: "An interlocutory decree shall become absolute after the expiration of six months from the entry thereof, unless appealed from or proceedings for review are pending, or the court before the expiration of said period for sufficient cause, upon its own motion or upon the application of any party, whether interested or not, otherwise orders; and at the expiration of six months such final and absolute decree shall then be entered upon application to the court by the party in whose favor the interlocutory decree was entered, unless prior to the time cause was shown to the contrary."

Section 3: "It shall be unlawful for either party to a divorce proceeding, whose marriage is dissolved by the final decree provided for by section 2, of this act, to marry any person other than the husband or wife from whom the divorce was granted, within the period allowed for an appeal from such final decree under the Code of Civil Procedure, and if an appeal from such final decree be taken, until after the affirmance of such decree; and any marriage contracted in violation of the provisions of this section shall be null and void."

It is further provided that, "when an interlocutory decree of divorce is made, the court may make such order in relation to the children, property, parties, and the maintenance of the parties and children as shall be equitable. . . . Subsequent changes, or new orders, may be made by the court in respect to the disposal of the children or the distribution of property, as shall be reasonable and proper."

An interlocutory decree, upon findings on all the issues raised by the complaint and counterclaim, was made and filed on the 5th day of February, 1910, dismissing the complaint and dissolving the marriage relation. Notice thereof was served and filed on the 15th of that month. The findings and the decree are in substance as full and complete as findings and a decree can be made on a final disposition of a cause on the merits. There the proceedings rested until the 26th day of November, 1910, more than nine months after the interlocutory decree was entered, when, on the defendant's motion, notice of which was served and filed, interlocutory decree was made absolute. That decree was filed on that day, and notice thereof served and filed on the same day. The plaintiff, on the 23d day of May, 1911, served, and on the 25th day of that month filed, a notice of appeal "from the judgment entered on the 26th day of November, 1910." It is thus seen that the appeal was taken one year and more than three months from the filing of the interlocutory decree, and five months and twenty-seven days from the filing of the absolute decree.

What the plaintiff seeks to have reviewed on this appeal are the findings upon which the interlocutory decree was based. A review of no other question is presented. If the six months' period in which an appeal may be taken to review the proceedings sought to be reviewed began to run from the entry of the absolute decree, then the appeal was within time; otherwise not. A determination of this involves questions in respect of the character of the interlocutory decree, and of whether, on an appeal seeking a review of the proceedings resulting in such a decree, the statute contemplates an appeal, or confers the right of an appeal, from the interlocutory, or the absolute, decree. Our Constitution provides that appeals lie only from "final judgments." In harmony there-with, our general appeal statute, since the adoption of the Constitution, has, by an unbroken line of decisions of this court, been so construed as to permit an appeal only from a "final judgment." In view of this constitutional provision and of these prior holdings, and of a confusion of terms in the Session Laws referred to, the determination of the question in hand presents some difficulty. In the first place, the legislature uses the term "interlocutory" decree, which in itself implies a decree made pending a cause and before the final hearing on the merits, one where the further action of the court is necessary to give complete relief contemplated by the court on the merits. (4 Words and Phrases, 3712.) Then, in section 2, it is provided that the interlocutory decree shall become "absolute" after the expiration of six months from the entry thereof, "unless appealed from," etc., which language seems to imply a right of an appeal from the interlocutory decree. But following this the legislature interjects a new term, and speaks of the "final decree," and provides that "such final and absolute decree shall be entered" at the expiration of six months from the entry of the interlocutory decree, unless appealed from, etc.; and that either party to the divorce proceedings whose marriage is dissolved "by the final decree provided for by section 2," where both the interlocutory and absolute decrees are spoken of and provision made for both is forbidden from again entering into the marriage relation with one other than the party to the proceeding "within the period allowed for an appeal from such final decree under the Code of Civil Procedure, and if an appeal from such final decree be taken, until after the affirmance of such decree." By these expressions, it seems that the legislature speaks of the terms "absolute" and "final" as synonymous terms, and clearly implies a right of an appeal "from such final decree." Thus, from the language used in section 2, the legislature indicated a right of an appeal from the interlocutory decree, and treated the terms "absolute" and "final" as synonymous terms; then, from the language used in section 3, it clearly indicated a right of an appeal "from such final decree." It is difficult to harmonize these provisions, except on the theory that a right of an appeal is intended from both the interlocutory and the final decree. The questions then arise as to whether the legislature could so provide without offending against the Constitution, providing that appeals may be taken only from final judgments, and, if so, what may be reviewed on such appeals.

It is provided that on the issues and upon the evidence adduced--upon the...