Stebbins v. Anthony

• Decision Date: 01 December 1880
• Citation: 5 Colo. 348
• Parties: STEBBINS v. ANTHONY ET AL.
• Court: Colorado Supreme Court

5 Colo. 348

STEBBINS v. ANTHONY ET AL.

Supreme Court of Colorado

December, 1880

Error to Probate Court of Jefferson County.

THE case is stated in the opinion.

Mr THOMAS GEORGE and Messrs. BARTELS & BLOOD, for plaintiff in error.

Mr. J Q. CHARLES and Mr. E. L. JOHNSON, for defendants in error.

BECK J.

In the month of April, 1874, George I. Stebbins, since deceased filed in the Probate Court of Jefferson County, his bill of complaint, praying to be divorced from his wife Aurora Stebbins, the plaintiff in error, and alleging as grounds therefor, willful desertion without reasonable cause.

Such proceedings were had that in the month of June following, he obtained a decree granting the prayer of his bill. To reverse this decree the plaintiff in error, on the 8th day of May, 1879, sued out this writ of error.

A scire facias to hear errors, issued to Lucy J. Anthony as administratrix of the estate of George I. Stebbins, deceased, and as claiming to be the widow of said deceased. After the issuance of the latter writ, the said Lucy J. Anthony died, and the action has been revived against the present defendants in error, Scott v. Anthony and George F. Stebbins, as the only heirs-at-law of Lucy J. Anthony, deceased; the said Scott J. Anthony being also administrator of the estate of said Lucy, and likewise administrator de bonis non of the estate of said George I. Stebbins, deceased.

The first assignment of error questions the jurisdiction of the probate court to entertain an action for a divorce.

The point raised and relied upon by counsel for plaintiff in error under this assignment is, that a proceeding for a divorce is not a matter of equitable cognizance, but is purely statutory as to right and remedy, and that jurisdiction over this class of actions had not been specifically conferred by statute upon the court below.

While there are some adjudications to the effect that an action of divorce is a purely statutory proceeding, we think the weight of authority opposed to this view; and that the jurisdiction of the equity tribunals has generally been asserted and maintained in this country in the absence of statutes as well as under them.

Where statutes on the subject have been enacted, they usually provide that the chancery practice shall be observed in administering the law; and where divorces have been decreed for causes without the statute, courts of equity have assumed jurisdiction and afforded relief.

In support of the objection to the jurisdiction in equity, where such jurisdiction is not specifically authorized by statute, it is suggested that in England, during the settlement of this country, exclusive jurisdiction in matters of divorce vested in the ecclesiastical courts; that chancery courts did not possess this jurisdiction; hence it is argued that, before our chancery courts can take cognizance of causes ecclesiastical, they must have statutory authority.

This doctrine can be conceded only in cases where the grounds or causes alleged may be purely canonical. Our chancery courts would not be authorized to grant divorces for canonical defects or impediments, as impotency, for example, unless it was also made a ground of divorce by statute. But where the grounds for which a separation may be decreed are fixed by statute, as in the present instance, the litigation is necessarily one of equitable cognizance.

The authority of the equity tribunals has also been recognized in cases of marriage void on grounds of fraud, duress, and lunacy, in the absence of statutory provisions by reason of the inherent jurisdiction of equity over these subjects. Fulton v. Fulton, 36 Miss. 519; Wightman v. Wightman, 4 Johns. Ch. 343; Crump v. Morgan, 3 Iredell's Eq. 91; Ferlan v. Gojan, 1 Hop. Ch. 478; Clark v. Field, 13 Vt. 460; Fornshell v. Murray, 1 Bland's Ch. 479, 483; 1 Bishop on Mar. & Div. Secs. 71-77; 2 Bishop on Mar. & Div. Sec. 291.

But it is not necessary in the present case to maintain that a court having equity powers only, may, in the absence of express authority, take cognizance of suits for divorce. By the amendments to the organic act of March 2nd, 1863, the probate courts, together with the Supreme and district courts of the Territory, were vested with both chancery and common law jurisdiction, and with authority for the redress of all wrongs committed against the laws of the Territory affecting persons or property. Two limitations were imposed by the act; one relating to the several courts named, and the other affecting the probate courts only. The first was that the jurisdiction of the several courts should be as limited by law; and the other provided that 'the said probate court shall not have jurisdiction in any matter in controversy where the debt or sum claimed shall exceed the sum of two thousand dollars.'

The increased jurisdiction conferred by this amendment was extended to the Probate Court of Arapahoe County by the legislative act of February 9, 1870, and afterwards the same provisions were extended and made applicable to the Probate Court of Jefferson County, by the act of January 31, 1872.

The act provides that: 'The Probate Court of the county of Arapahoe, in this Territory, shall hereafter have concurrent jurisdiction with the district courts of this Territory, in all actions, suits, and proceedings whatsoever, as well at law as in equity, when the debt or sum claimed, or the value of the property, whether real, personal, or mixed, or all, or both, or the matter or thing in controversy shall not exceed the sum of two thousand dollars.'

If the effect of this legislation was to make the jurisdiction of the district and probate courts concurrent in all suits and proceedings at law and in equity, except those suits and proceedings which involved claims or property exceeding in value the sum of two thousand dollars, there is nothing left for construction, and proceedings for divorce not complicated with money or property claims exceeding the jurisdiction of the court, are as much within the cognizance of the probate court as of the district court.

If the jurisdiction does not exist, it is not for want of inherent powers in the court to support it, but by reason of the peculiar phraseology employed in the statute to express the legislative will.

If the position were assumed and could be maintained, that the concurrent jurisdiction conferred by the act was limited to actions, the gist of which were money demands, and suits for the recovery of or concerning property, a very different result might follow.

A careful consideration of the statute, however, leads us to conclude that the aim of the legislature was to give full scope and effect to the common law and chancery powers conferred on this court by the act of Congress imposing no other or greater restrictions thereon than those contained in the act itself. This result necessarily and conclusively follows from the words of the act conferring concurrent or joint and equal jurisdiction 'in all actions, suits and proceedings whatsoever, as well at law as in equity.'

The language of the statute is broad and comprehensive, indicating an intention to include in the concurrent jurisdiction all and every species of actions and proceedings within the limits imposed, which could be entertained by the district courts. Had such not been the intention it is only reasonable to suppose that other limitations would have been imposed, or that language would have been employed which would have clearly confined the jurisdiction to actions concerning money demands and property only.

Proceedings for divorce usually involve money and property rights, and although ancillary to the main proceeding, yet the value thereof, or the amount claimed as alimony, has been made the test of jurisdiction. Such was the case of Child v. Smith, 19 Wis. 558, which arose upon a statute very similar to the one under consideration. The laws of 1860 conferred upon the County Court of Milwaukee County, 'jurisdiction in all civil actions, both as to matters of law and equity, equal to, and commensurate and concurrent with the Circuit Court of Milwaukee County * * * provided that the value of the property, or the amount of money in controversy in any action in said county court, exclusive of costs, do not exceed twenty thousand dollars.' An action for divorce being instituted in the court under this statute, the county judge refused to entertain it, basing his refusal upon a want of jurisdiction to try and determine proceedings of that character. Upon mandamus to compel the judge to proceed to the trial of the cause, the statute was held to vest the court with jurisdiction; but as the complaint contained no averment of the amount and value of the property involved, the peremptory writ was denied.

Our own County Court act, passed since the adoption of the State constitution, contains a clause that-'in all actions for divorce, the petition, or bill of complaint, shall aver that the plaintiff does not seek alimony in excess of the said sum of two thousand dollars.' Gen. Laws 1877, Ch. XXIII. Sec. 2.

Section one of this act, defining the jurisdiction of county courts, is certainly not more comprehensive than the corresponding section of the acts of 1870 and 1872. The phraseology is the same, and the language almost verbatim; but for the reference to actions for divorce in the second section, the same doubt might arise as to the authority of the present county courts to entertain such causes. This clause only aids the statute by showing the understanding and intention of the framers, for it contains no grant of jurisdiction, but on the contrary, an express limitation upon the powers already granted.

It should be borne in mind that this same statute couched in...