Weston v. Weston

• Decision Date: 17 May 1926
• Docket Number: 11485.
• Parties: WESTON v. WESTON
• Court: Colorado Supreme Court

246 P. 790

79 Colo. 478

WESTON v. WESTON

No. 11485.

Supreme Court of Colorado

May 17, 1926

Department 2.

Error to District Court, City and County of Denver; Geo. F Dunklee, Judge.

Action by Guy S. S. Weston against Guadalupe Weston in which defendant filed a cross-complaint. The complaint was dismissed for failure to prosecute and defendant obtained a decree on her cross-complaint. Thereafter an order was entered modifying such decree, and she brings error. On motion to dismiss.

Motion denied.

Henry E. May and Albert E. Bogdon, both of Denver, for plaintiff in error.

Luke J Kavanaugh, of Denver, for defendant in error.

ALLEN, C.J.

This cause is before us upon a motion to dismiss the writ of error, upon the ground that the plaintiff in error did not within five days from the granting of the decree, file notice of an intention to apply for a writ of error.

The motion is grounded upon the theory that this is 'an action for divorce,' and that it is such an action within the meaning of that part of section 5605, C. L. 1921, which reads as follows:

'No writ of error shall be taken or allowed or prosecuted from the Supreme Court to review a judgment or decree of any court in an action for divorce, except at the time and in the manner hereinafter set forth, to wit: If the party against whom a decree of divorce has been granted shall file, within five days from the day on which such decree was granted, with the clerk of the court a written notice that he or she will apply within sixty days from the date of said decree to the Supreme Court, for a writ of error to review the said decree then a writ of error may issue from the Supreme Court. * * *'

In the court below, defendant in error, Guy S. S. Weston, began an action for divorce. His complaint was dismissed for failure to prosecute, and thereupon the cause proceeded to trial upon defendant's cross-complaint, which had been filed with the answer. The cross-complaint was one for separate maintenance only. A decree granting separate maintenance was granted. Thereafter an order was entered which modified the decree as to the amounts to be paid to defendant wife by plaintiff husband, and to review this order this writ of error has been sued out.

When plaintiff's complaint in divorce was dismissed, and the action proceeded under defendant's cross-complaint for separate maintenance, the action then became, and continued to be, solely an action for separate maintenance. The decree granted, and subsequent orders made, which are sought to be reviewed by this writ, were granted and made in an action for separate maintenance. The question is: Is such an action 'an action for divorce,' within the meaning of section 5605, C. L. 1921,...