Cheely v. Clayton

This is a writ of error sued out by Sarah A. Clayton and her tenant, Richard Mackey, citizens of Colorado, to reverse a judgment of the circuit court of the United States for the district of Colorado, in an action brought against them by Sarah A. Clayton, describing herself as a citizen and resident of Illinois, and widow and heir at law of James W. Clayton, deceased, to recover at tract of land in the county of Jefferson and state of Colorado, and a lode, mining claim, and quartz mill in Gilpin county in that state, and the rents, issues, and profits thereof. Trial by jury having been duly waived, the case was tried by the court, which found the following facts:

'(1) That the plaintiff and James W. Clayton intermarried at Wheeling, in the state of Virginia, on the third of May, 1855.

'(2) That on the first day of March, 1867, the said James W. Clayton filed his bill for divorce against the said plaintiff in the district court of Gilpin county, Colorado territory, which was a court of competent jurisdiction in that behalf; that the cause alleged in said bill as ground for divorce was that the said James W. Clayton had in 1863 taken the defendant therein, the plaintiff in this suit, to the state of Illinois, and that she had refused to return to Colorado, and had refused to live with said James W. Clayton, although he had often requested her to do so, and had offered to furnish to her a home and sufficient maintenance in Colorado.

'(3) That the plaintiff in this suit was, on the said first day of March, 1867, and thereafter until the present time, a citizen and resident of the state of Illinois.

'(4) That at the time of filing said bill in the district court of Gilpin county, a summons was issued out of said court, directed to the sheriff of said Gilpin county to execute, commanding him to summon the said plaintiff to answer the said bill, which summons was in all respects as required by the law of the territory then in force regulating such matters.

'(5) That the sheriff of Gilpin county, on the same first day of March, 1867, returned the said summons into the said district court of Gilpin county, with his indorsement thereon that the defendant therein, the plaintiff in this suit, was not found in his county.

'(6) That a notice of the pendency of said suit in the said district court of Gilpin county was published in a weekly newspaper printed and published in the said Gilpin county for four weeks, beginning with and next after the first day of March, 1867; and the first publication of said notice was more than thirty days before the return-day of said summons; that the certificate showing such publication was to the effect that the first publication of such notice was on the first of March, 1867, and the last publication was on the twenty-sixth of March, 1867; that said certificate was filed in said cause on the twenty-second of March, 1867.

'(7) That the defendant in the said divorce suit (the plaintiff in this suit) was not notified of the pendency thereof, except as aforesaid.

'(8) That a decree was entered in the said suit, brought in the said district court of Gilpin county, on the twenty-sixth of June, 1868, divorcing the said James W. Clayton from the defendant therein, (the plaintiff in this suit,) which said decree recites at the commencement thereof that it appearing to the court that due service had been had upon said defendant before the fourth of April, 1867, and that such service had been made, according to the laws of the territory of Colorado and the rules and practice of that court, more than ten days previous to the first day of the April term of said court, and that the defendant was called and defaulted.

'(9) That the said James W. Clayton and the defendant in this suit, Sarah A. Clayton, intermarried in the year 1870, at and within the state of Colorado.

'(10) That the said James W. Clayton departed this life about the tenth of October, 1874, leaving the said plaintiff and two children, issue of his marriage with the said plaintiff, him surviving.

'(11) That at and before the time of his death the said James W. Clayton was seized in fee of the premises described in the complaint as situated in Jefferson county.

'(12) That at and before the time of his death the said James W. Clayton was the owner of the premises described in the complaint as situated in the county of Gilpin, and in virtue of such ownership was entitled to hold, occupy, and possess the same.

'(13) That the value of the use and occupation of the said premises since the third of April, 1877, and the rents, issues, and profits thereof, as to the undivided one-half part thereof, is seventeen hundred and twenty-five dollars.'

Upon the facts so found, the court made the following rulings and conclusions in matter of law:

'First. That because the said defendant therein (the plaintiff in this suit) was not properly notified of the pendency of said suit in the district court of Gilpin county, the decree of divorce entered therein was and is void and of no effect.

'Second. That the said plaintiff in this suit, in virtue of her marriage with the said James W. Clayton, was and is, with the surviving children before mentioned, his heir at law, and as such is entitled to one-half part of his estate.

'Third. That the said plaintiff is the owner in fee of the undivided one-half part of the estate described in the complaint as situated in Jefferson county.

'Fourth. That the said plaintiff is the owner, and, under the laws of the state, is entitled to hold, occupy, and possess the undivided one-half part of the estate, described in the complaint as situated in Gilpin county.

'Fifth. That the said plaintiff is entitled to recover of the said defendants, as and for the rents, issues, and profits of said premises, and damages for the detention thereof, the said sum of seventeen hundred and twenty-five dollars.'

Judgment was accordingly rendered for the plaintiff on March 3, 1879, and the defendants tendered a bill of exceptions, and sued out this writ of error. The plaintiff in error, Clayton, having died since the entry of the case in this court, her heirs have been made parties in her stead.

Willard Teller, for plaintiff in error.

L. C. Rockwell, for defendant in error.

GRAY, J.