Branch v. Branch , 30 Colo. 499 ( 1903 )

Mr. Justice Steele

delivered the opinion of the court.

For several years prior to the filing of the complaint, the plaintiff and defendant resided in the county of Weld, in this state. For about two years prior to the middle of November, 1899, they lived on a farm in said county, where they" were both employed. On the last-named date, the husband; being dissatisfied for some reason, made overtures to his wife to leave the farm with him, but upon her refusal to do so, he left, leaving his wife on the farm. About the 10th of December, 1899, the wife went to the county of Pitkin, and within three days after her arrival at Aspen, and on, to wit, the 13th day of December, filed her complaint against her husband, in which she charged that he, being in good bodily health, had failed for more than a year prior to the commencement of the action to make reasonable provision for the support of his family. An answer was filed, in which the allegations of the complaint were denied, and the defendant charged that the plaintiff had deserted him in the month of November, 1899. The cause was tried to a jury of three. The defendant objected to a trial by a jury of three; the objection was overruled, and the defendant excepted. At the close of the plaintiff’s testimony, the defendant moved that the cause be dismissed for the reason that it appeared by the testimony that the plaintiff was not a resident of the county of Pitkin, which motion was denied. It is stated in the assignment of error and in the argument that the court held that by proceeding to trial the defendant waived the right to question the plaintiff’s residence in the county of Pit-kin ; and while the reasons assigned by the judge for denying the motion do not appear, it does appear in the original decree, which is on a printed blank, that the court, before signing the decree, erased certain words of the decree, which show: that he considered the question of the plaintiff’s residence and that he failed to find that at the time of the commencement of the action the plaintiff was a resident of the county of Pitkin.

Three questions are presented for our consideration :

1. Whether a jury of three is a proper jury for the trial of an action for divorce, unless the opposite party consents thereto.

2. Does a defendant, by proceeding to trial, waive the right to question the plaintiff’s residence in the county where the suit is brought!

3. Did the evidence in support of the plaintiff’s complaint warrant the finding of guilty!

We are of the opinion that the plaintiff has failed to establish the allegations of her complaint, and we shall therefore not determine the questions raised relating to the jury and the residence of the plaintiff. We are satisfied that the court should have directed the jury to return a verdict of not guilty. The plaintiff and defendant depended upon* their, own,labor for their support. In the fall of 1898 the plaintiff and defendant mutually agreed to live upon the farm of a man named Cope, within a few miles of New Windsor, Weld county. The plaintiff’s testimony upon this subject is as follows: “In October, 1898, I left New Windsor and went to a ranch one and a half miles, to a man named Cope. The arrangements were that we were to furnish part of the provisions and Cope was to furnish the other things, such as flour, potatoes, milk, butter and house rent. This arrangement did not last very long, as Mr. Branch did not live up to his agreement, and Mr. Cope Was compelled to supply the provisions, and about the 1st of March another arrangement was made with Mr. Cope, who had employed more men, and he agreed to furnish all the provisions, my work to offset Mr. Branch’s, the children’s and my board.”

Upon cross-examination, she says: “We moved to New Windsor about 1897. At that time Mr. Branch worked in the creamery, and worked steadily for a few months. He was manager for a man in Denver. We lived in a frame house of five rooms, which Was comfortably furnished. He provided common every-day food and enough of it; the child was clothed half-way decently — we only had one then— While I had what clothes mother gave me, fairly re-spectacle clothes. About the 1st of October, 1898, Mr. Branch told me we had a splendid opportunity offered to go to work at Cope’s, one and a half miles north from Windsor. He offered us a home to keep house for him. I said it was a godsend to us. We did not know where we were going to move, and had no money to pay rent. I was in bed with the second baby. We both thought it was a snap. Mr. Branch had quit working at the creamery several months before. ’ ’

“Q. Why did he w!ant to leave Cope’s? A. I don’t know.

Q. Did he ever tell you why he wanted to go away and take you away? A. No, sir.

Q. Did he have any private talk with you to tell you why? A. We have often talked to each other that it was a snap, and if we could stay another year, we would get some money.

Q. Was it a snap? A. It was, fortunately. We were doing well at Cope’s; Mr. Cope furnished the provisions.”

The arrangements mentioned lasted until about the 1st of March, 1899. Branch and his wife, by their joint efforts, furnished the family with sufficient provisions. After the 1st of March, another arrangement was made, and the defendant was to farm land rented to him by Cope; but for some reason there was a failure of the crop and he did not realize as much from its sale as he had anticipated. These people apparently lived together in perfect harmony until a month or two before the husband left. It is not necessary to consider the reasons he gave for urging his wife to leave with him, suffice it to say he was dissatisfied, and offered to provide rooms in New Windsor, but his wife declined to go with him.

The testimony, viewed in the most favorable light for the plaintiff, shows that the defendant made, with his wife’s efforts, ample provision for the support of his family up to March, 1899. We do not intimate that since March, 1899, the defendant has failed to make a reasonable provision for the support of his family, but that the testimony of the plaintiff, giving it the strongest construction in plaintiff’s favor, does not "show a failure on the part of the defendant to make a reasonable provision for the support of his family for the year prior to the filing of the complaint.

The judgment is reversed, with directions to dismiss the cause.

Reversed.