Pierce v. Pierce, 13700.

• Decision Date: 10 June 1935
• Docket Number: 13700.
• Parties: PIERCE v. PIERCE.
• Court: Colorado Supreme Court

46 P.2d 748

97 Colo. 39

PIERCE v. PIERCE.

No. 13700.

Supreme Court of Colorado

June 10, 1935

In Department.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Suit by John F. Pierce against Ida M. Pierce, wherein defendant filed a cross-complaint. To review a judgment, plaintiff brings error. On defendant in error's motion to dismiss the writ of error.

Motion denied.

B. B. McCay, of Denver, for plaintiff in error.

Barnard Cummings, of Denver, for defendant in error.

HILLIARD Justice.

Plaintiff in error sued for absolute divorce, charging cruelty. Defendant in error denied the allegation of cruelty, and cross-complaining for separate maintenance, alleged cruelty and desertion. On both complaint and cross-complaint verdicts were returned in favor of defendant in error, for whom judgment entered. Plaintiff sues in error.

Defendant in error moves for dismissal of the writ of error on four grounds: (1) That the record on error was not filed until more than one year after entry of judgment in the trial court; (2) that plaintiff in error did not within five days after the judgment file with the clerk of the district court notice of his intention to seek review in this court; (3) that he did not tender his bill of exceptions within time; (4) that the matter of which complaint is made in the assignments is moot or unimportant.

1. The record was filed here March 12, 1935. Verdicts as indicated were returned May 27, 1933. Plaintiff in error's motion for new trial was filed July 1, 1933. The motion was heard and denied December 11, 1933. If, as defendant in error contends, judgment was entered that day, the requirement that for review the record must be filed within one year was not observed. Plaintiff in error insists, however, that final judgment was not entered until March 16, 1934, when formal decree was signed; in which view the filing here was within time. When the motion for new trial was overruled, the court stated that defendant was entitled to judgment on her cross-complaint for separate maintenance, and that if not already done, 'it will be entered now.' Then followed a discussion as to what the judgment should comprehend, the judge saying, 'I assume some sort of decree ought to be entered, in conformity with the prayer of the cross-complaint.' There was further discussion. 'Separate maintenance,' the judge observed, 'is the right to live separate and apart, the wife to be maintained by the husband. You say you want the husband and wife to have the right to live separate and apart and the question of maintenance to be taken up later. I do not think you need one without the other. I understand they are living apart and have been for some time.' Counsel for the wife replied, 'Yes. I will draw a decree, then.' He was directed to submit the draft of proposed decree to opposing counsel. This was done, but it was not until March 16, 1934 that a decree satisfactory in form to all concerned was signed by the court. It is clear that at the time of the colloquy outlined the court was ready to enter judgment, but it is quite as clear that judgment was...