Cereghino v. Cereghino , 4 Utah 100 ( 1885 )

BOREMAN, J.:

On the twenty-second of May, 1880, appellant brought suit against respondent for divorce, in the third district court. Answer having been duly filed, a decree, after hearing, was on the twentieth of May, 1882, entered, granting divorce as prayed.

On the twenty-fifth of August, 1880, appellant brought suit in the same court against respondent for partition also. Answer was duly filed therein, and on the 5th of June, 1882, after hearing, a decree was entered therein directing the sale of the property and a division of the proceeds thereof between appellant and respondent.

On the eleventh of October, 1884, the motion of the respondent theretofore submitted, in each of said causes for new trial, was allowed, and appellant thereupon brought the causes to this court. By stipulation the causes were heard together and one statement made for use in both.

It is objected that no notice of intention on the part of respondent to move for a new trial in the court below was ever filed or served, and in support of this objection the appellant asks leave of this court to introduce a certificate of the clerk of the court below “that no notice of motion of new trial nor order continuing jurisdiction over tbe canse from April term A. D. 1882, is of record;” also “the stipulations between tbe parties to tbe action, extending time to file statement on new trial or appeal, of date June 5 and 80, A. D. 1882;” also tbe order adjourning court on July 22, 1882, and tbe minute entry of tbe submission of tbe motion for new trial, of date October 6, 1884.

If tbe leave to introduce these matters were proper now, and it should be granted, we do not think it would avail tbe appellant anything. Tbe first step to be taken where a new trial is desired, is to give tbe notice of intention to move therefor. Tbe making and settlement of tbe statement follows. Tbe record shows that appellant appeared •and offered amendments to tbe proposed statement presented by respondent, that tbe amendments were allowed and tbe statement then agreed to and signed by attorneys of both appellant and respondent. Tbe inference is that she (tbe appellant) bad bad notice of tbe motion which tbe statement was made to support; otherwise she would not have united in settlement of tbe statement. Tbe statute contemplates tbe giving of a written notice of the decision, but appellant gave none. She claims that respondent acted as if such notice bad been given, and she therefore assumed that respondent bad waived it. With equal reason it is proper to presume from appellant’s action in agreeing to the statement, that tbe notice of intention bad been waived or that it bad been given. Had nothing of tbe kind been done, tbe appellant should have made tbe objection in tbe court below; either upon settlement of tbe' statement or upon bearing of tbe motion. Nothing of tbe kind appears to have been done. A similar rule would apply to tbe objection that tbe statement was not filed within time.

It is also objected that tbe statement does not purport to contain all tbe evidence. It is not necessary that it should. Under our practice tbe presumption is that tbe statement contains all tbe evidence necessary to explain tbe particular points specified as error, and no more. This was tbe rule under tbe civil practice act of 1870: Comp. Laws, p. 454, and is tbe rule under tbe Code of Civil Procedure: Sec. 538, Laws of 1884, p. 249.

Tbe main question, however, on this appeal, is whether the evidence was sufficient to support the judgment in each case. Upon the trial, both appellant and respondent testified, and, so far as the divorce matters are concerned, their testimony was very conflicting. The testimony of the other witnesses corroborated the respondent fully as much as the appellant; and the uncontradicted testimony of Guilani showed that appellant had a “turbulent temper”’ and “wanted to be a woman of liberty.” The testimony of Bossi also shows appellant to be a woman of “violent and turbulent temper.” The other facts gathered from the testimony seem to be that appellant and respondent, being husband and wife, were living together at Bingham, a mining camp in Salt Lake county; that respondent owned a saloon, in which his wife acted as bartender; that respondent concluded that it was not best for her and their daughter to attend in the saloon, and tried to prevent it; that, in doing so, he went to the extent of nailing up the stairway leading from that part of the house used as a dwelling down into the saloon, and hired a young man as bar-tender in place of his wife; that the wife (appellant) would not allow herself to be kept out of the saloon, and proceeded to break down the door which respondent had barred up. The respondent sought to prevent this, and to get the axe away from appellent, but was not strong enough. In the struggle she received some bruises, but was vigorous enough to drive out the new bar-tender, and hurl a beer bottle after him; that, on another occasion, respondent had a difficulty with a man, and went for his revolver; that appellant tried to get the revolver away from respondent, and, in respondent’s struggle to release himself from her hold, she received bruises; that, on other occasions, the appellant and respondent were accustomed to call each other bad names, and did not live happily together. Taking all the evidence together, it does not appear that appellant had any grounds of complaint. She seems to have been as fully in the wrong as respondent. The evidence, therefore, in. our opinion, was insníñoient to support tbe judgment in tbe divorce suit;’ and tbe order of tbe court below allowing a motion of respondent for a new trial in tbe divorce suit is affirmed, with costs.

Tbe decision in tbe partition suit is dependent upon that in tbe divorce suit. It does not appear that appellant and respondent were equal owners of tbe property. Slie left ber busband, but, so far as tbe evidence goes, it was without legal cause. It appears, therefore, that tbe evidence is insufficient to support tbe judgment, and tbe action of tbe court below allowing tbe respondent’s motion for new trial is affirmed, with costs.

ZANE, C. J., concurred. Emerson, J., concurred in tbe resirlt.