Williams v. Williams

• Decision Date: 17 February 1926
• Docket Number: Civil 2411
• Citation: 29 Ariz. 538,243 P. 402
• Parties: JOHN H. WILLIAMS, Appellant, v. MATTIE L. WILLIAMS, Appellee
• Court: Arizona Supreme Court

243 P. 402

29 Ariz. 538

JOHN H. WILLIAMS, Appellant, v. MATTIE L. WILLIAMS, Appellee

Civil No. 2411

Supreme Court of Arizona

February 17, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. Richard Lamson, Judge. Affirmed.

Mr. R E. L. Shepherd and Mr. Earl Anderson, for Appellant.

Messrs Barnum & Flanigan, for Appellee.

OPINION

LOCKWOOD, J.

Mattie L. Williams, hereinafter called appellee, instituted this action against John H. Williams, hereinafter called appellant, in the superior court of Maricopa county, asking for a limited divorce and suitable support. In her complaint appellee charged appellant with wilful desertion and cruelty; also alleging that there was a large amount of community property, and that he had failed properly to support her for more than two years. Appellant answered by a general denial, and specially pleaded that, before the marriage of the parties, they had entered into a contract in writing which reads as follows:

"Agreement.

"This agreement, made and entered into this 20th day of July, 1912 by and between John H. Williams, party of the first part, and Mattie L. Banks, party of the second part, both of Phoenix Arizona, witnesseth: Whereas, a marriage is intended to be solemnized between the above-named parties and in view of the fact that after their marriage, in the absence of any agreement to the contrary, their legal relations and powers may be other than these which they desire to have apply to their relations, powers and capacities:

"Now, therefore, the above-named parties declare, each of them does hereby declare it to be his and her desire that during their marriage each of them shall be and continue completely independent of the other as regards the enjoyment and disposal of all property owned by either of them at the commencement of their marriage, and each of the said parties hereby agrees with the other in consideration of said proposed marriage that all property belonging to either of them at the commencement of said marriage shall be enjoyed by him or her and be subject to his or her disposition as his or her separate property in the same manner as if the said proposed marriage had never been celebrated and free from all claim or control of the other.

"It is further agreed by and between the parties hereto that in case the parties hereto should after said marriage at any time or for any cause or reason cease to live together or cease to maintain the relation of husband and wife, or in case said marriage shall be dissolved by the decree of any court, then and in such case or event, the party of the first part shall pay to the party of the second part the sum of five hundred ($500.00) dollars which shall be in full satisfaction and settlement of all claims and demands against the party of the first part, or his property.

"It is further agreed that any property now or hereafter acquired by either of the parties hereto, the title to which stands or shall stand in the name of the party so acquiring the same, shall be and be deemed conclusively the separate property of the party so acquiring the same and in whose name the title stands or shall stand, and all such property may be sold or disposed of or mortgaged by the party in whose name the title thereto stands or shall stand without the consent or signature of the other.

"In witness whereof the said parties have hereunto set their hands this 30th day of July, 1912.

"JOHN H. WILLIAMS.

"MATTIE L. BANKS."

He alleged his readiness to pay the $500 set forth in said contract and denied there was any community property. He also filed a cross-complaint asking for an absolute divorce on the ground of the extreme cruelty of appellee. A reply to this cross-complaint was duly made, denying the allegations thereof, and setting up a certain judgment in a previous action as res adjudicata. The case was tried to a jury, which answered twelve interrogatories, some in favor of appellant's theory of the case, and some in favor of appellee's. The trial court made findings of fact and on these findings rendered judgment in favor of appellee for a limited divorce and for $100 a month to be paid by appellant for her support, and denied him any relief under his cross-complaint. Motion for new trial was duly made and overruled, and from the judgment an appeal was taken to this court.

There are some six assignments of error which we will consider as seems advisable. The first is that the court had lost jurisdiction to render any judgment whatever, since more than sixty days had passed after the submission of the case before it was decided. This assignment is based upon article 6, section 15, of the Constitution, which reads as follows:

"15. Every case submitted to the judge of a superior court for his decision shall be decided within sixty days from the submission thereof. . . ."

It is contended by appellant that this provision of our Constitution is mandatory, and therefore, if the court fails to render a decision within the sixty days, its jurisdiction is lost. This question has been before the Supreme Court of Washington in the case of Demaris v. Barker, 33 Wash. 200, 74 P. 362.

Section 20, article 4, of the Washington Constitution is almost verbatim like ours, except that the period fixed is ninety instead of sixty days, and that Constitution, also like ours, states that its provisions are mandatory, unless by express words they are declared to be otherwise. The contention was raised in the case cited that the court had lost jurisdiction, as in this one. The Washington court, in passing upon this, said:

"It seems to us, however, that such a construction of the section would be directly subversive of its purpose. Manifestly the purpose of the provision was to secure a speedy determination of causes submitted to the court for decision. 'The law's delay' is not a modern phrase. Judges of the old time were not wholly unlike some of their successors in office. They, too, were inclined to waver between two opinions, fearful to pronounce the one lest the other should be deemed the more powerful, and delays caused thereby have at all times been more or less prevalent, and have always been regarded as something of an unmixed evil when viewed from the standpoint of a litigant or...