People ex rel. Stanko v. Routt County Court

• Decision Date: 08 March 1943
• Docket Number: 15315.
• Parties: PEOPLE ex rel. STANKO v. ROUTT COUNTY COURT et al.
• Court: Colorado Supreme Court

135 P.2d 232

110 Colo. 428

PEOPLE ex rel. STANKO v. ROUTT COUNTY COURT et al.

No. 15315.

Supreme Court of Colorado, En Banc.

March 8, 1943

Original proceeding in the nature of prohibition by the People of the State of Colorado, on the relation of Lottie McCowin Stanko petitioner, against the County Court of Routt County, and John W. Cole, Judge and ex officio clerk thereof. Order to show cause was duly issued.

Order to show cause discharged.

Sam F Davis, A. M. Lutz, Harold F. Mudge, and M. S. Ginsberg, all of Denver, for petitioner.

Addison M. Gooding and Marvin L. Brown, both of Steamboat Springs for respondents.

HILLIARD Justice.

An original proceeding in the nature of prohibition.

Petitioner is defendant in a suit for divorce instituted in the county court of Routt County. Respondents are that court and Honorable John W. Cole, the judge thereof. The complaint was filed October 26, 1942, and service of summons, as stated by her, 'was made upon the petitioner at her residence, to wit: 3327 Franklin Street, in the City and County of Denver, * * *, on the 29th day of October, 1942.' Petitioner filed a motion, supported by her affidavit to the effect already recited, for a change of venue to the county court of the City and County of Denver. Plaintiff, as petitioner further alleged, filed an 'affidavit resisting petitioner's motion.' Hearing on the motion was had January 26, 1943, and denied. Showing to the purport of the foregoing having been made to us, order to show cause was duly issued.

Answering, respondents denied that petitioner was a resident of Denver, and in support of their answer set forth the affidavit of plaintiff in suit in opposition to the motion for change of venue. Respondents further alleged that hearing was had on the motion for change of venue, at which the affidavits of both of the parties already mentioned, as well as 'testimony and documentary evidence * * * introduced,' were considered, and, based thereon, the motion for change of venue was denied. Plaintiff's affidavit, which, so far as appears, was not controverted, reads as follows:

'That he is the plaintiff in the above entitled cause; he denies that the defendant is or was at the time of the commencement of this action, or at the time of the making of the affidavit for change of venue, a resident of or residing in the City and County of Denver, but at all said times the said defendant resided and had for a number of months prior thereto resided in the County of Routt, State of Colorado, where said action is pending.

'The parties intermarried June 18th, 1942, at Sidney, Nebraska, and on June 19th came to Steamboat Springs, in said Routt County to make their home, at which place the said plaintiff has lived and resided for many years past; on July 5th, 1942, the defendant approached the plaintiff and stated that she was going to Denver with her sister, Gale Beeler, to visit her mother for a few days, and that she would return on the following Saturday with her said sister. About said time her sister returned but the defendant did not; and throughout the time from her said departure until the commencement of the suit the defendant wrote various and sundry letters to the plaintiff in which she expressed her intention to return home giving as an excuse for not returning reasons, among others: That she had broken her teeth; was needing medical attention; that her mother was ill and had to be cared for; that she needed money to return (which plaintiff sent her); and that upon her mother's improvement she would return.

The last of said letters was written on October 24th. Said several letters from the defendant will be introduced and submitted for the examination of the court and counsel upon the hearings on the motion to change venue.

'On three different occasions during said time the plaintiff went to Denver and interviewed defendant, and on none of said occasions did she say she would not return to Steamboat Springs, but on the contrary indicated in her statements and conversations that she would and intended to return and procured money from plaintiff from time to time to take care of her immediate needs and living expenses while in Denver, and with which to return.

'At no time did she write, state or intimate that she was staying in Denver as her permanent residence or that she did not intend to or did not reside in the said County of Routt.

'At various times in October, 1942,

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