Simmons v. Simmons, 14698.

• Docket Nº: 14698.
• Citation: 108 P.2d 871, 107 Colo. 78
• Case Date: December 16, 1940
• Court: Supreme Court of Colorado

108 P.2d 871

107 Colo. 78

SIMMONS
v.
SIMMONS.

No. 14698.

Supreme Court of Colorado, En Banc.

December 16, 1940

Rehearing Denied Jan. 6, 1941.

Error to District Court, Kit Carson County; John M. Meikle, Judge.

Action by Florence M. Simmons against Eric G. Simmons for divorce on ground of cruelty. To review a judgment for plaintiff, defendant brings error.

Affirmed. [108 P.2d 872]

[107 Colo. 79] Thornton H. Thomas, Jr., of Burlington, for plaintiff in error.

Sidney P. Godsman, of Denver, for defendant in error.

BAKKE, Justice.

Action by wife for divorce on ground of cruelty. The husband contested and on the consequent trial to a jury it returned a verdict for the wife. Husband seeks reversal on a writ of error. Reference will be made to the parties as they appeared in the trial court.

A preliminary matter requires disposition. While the cause has been pending here, counsel for the wife filed a motion to dismiss the writ of error on the ground that it was not filed within six months after the issuance of the interlocutory decree. We reserved judgment but now hold against that proposition in accordance with the pronouncement in Pierce v. Pierce, 97 Colo. 39, 46 P.2d 748, 749, wherein we said: 'The practice has been made to conform to that in other civil cases. Session Laws 1933, c. 71, p. 441, § 2 ['35 C.S.A. c. 56, § 16]'.

[107 Colo. 80] On the merits defendant urges three grounds for reversal: 1. The court had no jurisdiction because plaintiff was not a resident of Colorado. 2. There was no evidence of any acts of cruelty committed in Colorado such as would entitle plaintiff to a decree of divorce. 3. The court erred in its instructions to the jury.

It appears from the record that the parties were married in Kit Carson county, Colorado, March 1, 1926, and almost immediately thereafter moved to Kansas where they engaged in farming for about nine years, and during which time four children were born. In the fall of 1935, they discontinued farming and went into the restaurant business. They jointly conducted restaurants in several towns in Kansas until just prior to the commencement of this suit, when plaintiff was operating one at Haddam, Kansas, and defendant one at Clyde, Kansas. These towns were sufficiently near each other to permit of cooperation in the maintenance of the two restaurants. Near-beer was sold in both places of business and parties were given by plaintiff and defendant at which the participants indulged in the drinking of...