People ex rel. Plunkett v. District Court of Rio Grande County in the 12th Judicial Dist.

• Citation: 258 P.2d 483,127 Colo. 483
• Decision Date: 18 May 1953
• Docket Number: No. 17084,17084
• Parties: . et al. Supreme Court of Colorado, en Banc
• Court: Supreme Court of Colorado

Page 483

258 P.2d 483

127 Colo. 483

PEOPLE ex rel. PLUNKETT v. DISTRICT COURT OF RIO GRANDE COUNTY IN THE 12TH JUDICIAL DIST. et al.

No. 17084.

Supreme Court of Colorado, en Banc.

May 18, 1953.

Joseph A. Myers, Denver, for petitioner.

No appearance for respondents.

ALTER, Justice.

This proceeding was instituted by a petition for relief in the nature of prohibition arising out of a divorce action in which petitioner was defendant and one Marvin Plunkett was plaintiff.

The record attached to the petition discloses that in an action entitled 'Marvin Plunkett, Plaintiff, v. Roberta Plunkett, Defendant.' a verified complaint for divorce was filed in the county court of Rio Grande county on September 25, 1951, service of the summons in said action being had upon defendant therein on September 22, 1951. Subsequently, and on January 15, 1952, defendant filed her answer and cross-complaint in the county court, seeking a dismissal of the divorce action and praying for a decree of separate maintenance. Thereafter, on January 15, 1952, defendant filed a motion to transfer the action to the district court of Rio Grande county, which motion was granted January 16, 1952. On January 28, 1952, plaintiff filed his answer to the cross-complaint, and thereafter and on May 26, 1952, filed an amended complaint in which, in addition to the ground of cruelty, he charged defendant with adultery. September 4, 1952, the cause came on for hearing, whereupon plaintiff withdrew his complaint and amended complaint; defendant amended her cross-complaint seeking a decree of divorce, and plaintiff having declined to plead further to defendant's cross-complaint, his default was noted, and the cause proceeded to hearing as a noncontested divorce action, resulting in the court entering its interlocutory decree in defendant's favor on September 4, 1952.

Plaintiff, in paragraph 3 of his complaint in the divorce action, alleged, 'That the plaintiff and defendant have been bona fide residents and citizens of the County of Rio Grande and State of Colorado for a period of more than one year immediately preceding the commencement of this action.' and defendant, in her answer and cross complaint, 'admits the allegations of paragraphs * * * 3, * * * of said complaint.'

On the hearing on September 4, 1952, a transcript of which is before us, there was no testimony whatever introduced as to residence of either party in Rio Grande county or the State of Colorado; nevertheless the court entered its findings in the interlocutory decree, 'That plaintiff and defendant now are and for more than one year prior to the commencement of this action have been bona fide residents and citizens of the County of Rio Grande and State of Colorado.'

On March 2, 1953, defendant filed her motion to set aside the interlocutory decree of divorce, and upon hearing before the court on March 4, 1953, the motion was granted, and in the order setting aside the interlocutory decree is the following:

'2. That the plaintiff's amended complaint heretofore withdrawn by the plaintiff on the said 4th day of September, A. D. 1952, be and the same hereby is ordered and allowed to be refiled, and the defendant's motion to compel the plaintiff to make more specific and certain and to furnish a bill of particulars to the plaintiff's said amended complaint be reinstated and ordered pending at the same time, and the pleadings herein restored to the same state and condition which existed prior to the entry of said interlocutory decree of divorce granted on defendant's cross complaint on September 4, A. D. 1952.'

On March 13, 1953, defendant filed her verified motion for a change of venue, basing the same on two grounds, the first of which was:

'1. That neither the plaintiff nor the defendant has at...