People ex rel. Lackey v. District Court of Second Judicial Dist.

• Decision Date: 02 June 1902
• Citation: 69 P. 597,30 Colo. 123
• Parties: PEOPLE ex rel. LACKEY v. DISTRICT COURT OF SECOND JUDICIAL DIST.
• Court: Colorado Supreme Court

69 P. 597

30 Colo. 123

PEOPLE ex rel. LACKEY v. DISTRICT COURT OF SECOND JUDICIAL DIST.

Supreme Court of Colorado

June 2, 1902

Original application for prohibition by the people, on relation of Robert L. Lackey, against the district court of the Second judicial district. Writ issued.

Calvin E. Reed and Fred. A. Sabin, for petitioner.

Guy Le Roy Stevick, for respondent.

GABBERT J.

The wife of relator filed her petition for divorce in the district court of Arapahoe county. He moved to transfer the cause to the district court of Otero county upon the ground that this was the county of his residence. The motion was denied, and proceedings in prohibition in his behalf were then instituted in this court. The questions we are required to determine are: (1) Does the provision of the Code providing that civil actions in certain circumstances shall be tried in the county of the residence of the defendant apply in divorce proceedings? (2) Did the defendant waive his right to have the case transferred? (3) If the motion for a change should have been sustained, should the writ of prohibition issue? These several questions will be considered in the order named, and in discussing them the material facts bearing upon each will be stated.

1. Plaintiff based her right to a divorce upon the ground of extreme cruelty, and alleged that she was a resident of the county of Arapahoe. The summons and complaint were served upon the defendant in Otero county. The petition was filed January 29, 1902, and February 5th following defendant filed his motion for a change of the place of trial, alleging that he was a resident of Otero county. The fact of his residence or the place where the summons and complaint were served, are not controverted. Section 6 of the divorce act (Laws 1893, p 236) provides that suits for divorce shall only be brought in the county in which the plaintiff or defendant resides, or where the defendant last resided. Section 2 of the act provides that like practice and proceedings shall be had in divorce cases as are had in other civil cases, and in accordance with the requirements of the Civil Code, except as expressly modified or provided in the act. This provision clearly contemplates that all the provisions of the Code which are applicable shall control, in the trial and disposition of divorce cases, except as otherwise provided in the divorce act itself, either expressly or by necessary implication. Eickhoff v. Eickhoff, 27 Colo. 380, 61 P. 225 Civ. Code, § 27, provides that all civil actions except those depending upon the situs of the subject-matter of controversy, or where the cause or some part thereof arose shall be tried in the county in which defendant may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county, subject to the power of the court to change the place of trial for certain specified reasons. No territorial limit is fixed by the constitution defining the jurisdiction of the district court, and the Civil Code has seemingly recognized that actions were so far transitory in their nature that they might be brought in any court having jurisdiction of the subject-matter and the character of the action commenced. Fletcher v. Stowell, 17 Colo. 94, 28 P. 326; Board of Com'rs of Gunnison Co. v. Saguache Co. Com'rs, 2 Colo.App. 412, 31 P. 183; Wasson v. Hoffman, 4 Colo.App. 491, 36 P. 445; Railroad Co. v. Cahill, 8 Colo.App. 158, 45 P. 285; Forbes v. Board, 23 Colo. 344, 47 P. 388. The legislature, however, by the provision under consideration, intended to limit this right, and imposed a limitation as to the forum in which the action should be commenced. Warner v. Warner, 100 Cal. 11, 34 P. 523. Whatever reasons might be advanced for this limitation are wholly immaterial, for, independent of these considerations, the legislature undoubtedly had the power to change the usual rule in civil actions, and provide that only certain forums determined by the residence of the parties should take jurisdiction of divorce proceedings by their commencement. This, however, does not change the Code provisions with respect to the place of trial, but, on the contrary, in view of the fact that the divorce act provides the Civil Code shall apply except as expressly modified by its own provisions, the mandate of the act with respect to where actions for divorce shall be brought must be read in connection with those code provisions. Warner v. Warner, supra; Evans v. Evans, 105 Ind. 204, 5 N.E. 24, 768; Powell v. Powell, 104 Ind. 18, 3 N.E. 639. Any other construction would inject into the act a limitation as to the place of trial wholly unwarranted by any express or implied provisions. In fact, if it were held that a defendant in a divorce action is not entitled to the right to have the case tried in the county of his residence when the conditions mentioned in section 27 of the Code exist, it would be equally as logical to hold that the other provisions of the Code relative to a change of venue for the convenience of witnesses, or the prejudice of the judge, were not applicable. In the California case above cited the court had under consideration a provision of the Civil Code which directed: 'A divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the commencement of the action.' Civ. Code, § 128. While the language employed is different from the provisions of our divorce act as to where an action of this character must be commenced, it is equally as mandatory on this subject, because a party could not commence an action in any county except the one of his residence. Notwithstanding this provision, the court held that it must be read in connection with the section of the Code providing for the place of trial of civil actions, and said: 'The former is a limitation as to the place for the commencement of actions of divorce; the latter provide for the place of trial.' Walton v. Walton, 96 Tenn. 25, 33 S.W. 561, cited by counsel for respondent, is not applicable. The court in that case had under consideration the law on the subject of divorce which provided: 'The bill may be filed in the proper person and name of the complainant in the circuit or chancery court of the county or district where the parties resided at the time of their separation, or in which the defendant resides or is found, if a resident, but if a non-resident or convict, then in the county where the applicant resides.' It appeared from the facts that the defendant was a resident of the state, not a convict; and, not being found in any other county, it was held that the bill should have been filed either in the county in which the defendant resided, or in which the parties resided at the time of the separation, and, as this was not done, the court in which it was filed had no jurisdiction of the case. This is in harmony with our own views that the designation of the county in which actions for divorce shall be brought, as determined by the residence of the parties, is a jurisdictional limitation as to the courts in which such actions shall be commenced. In the early Indiana cases cited by counsel for respondent, and especially Musselman v. Musselman, 44 Ind. 106, it was held that a suit for a divorce was not a civil action, within the meaning of the code provisions relating to a change of venue in civil cases. That case, however, has been expressly disapproved and overruled in Evans v. Evans, supra, where, notwithstanding the previous holding in the Musselman Case, it was held that a divorce proceeding has all the requisites of a civil action, as defined by the Civil Code, in the sense that the provisions of the latter are applicable and controlling, except as modified by the divorce act. True, in that case the application for a change of venue was based upon the ground that the appellant could not have a fair and impartial trial in the county in which the suit was commenced; but, if the code...