Simms v. Simms

The suit was commenced by a complaint filed October 6, 1894, in a district court of the territory of Arizona, by a husmatrimony for the cause of desertion on and ever since December 18, 1893. The wife's answer denied the desertion alleged, and set up desertion by the husband on and ever since December 14, 1893, as well as cruelty on his part.

The Revised Statutes of 1887 of the territory of Arizona, title 34, chap. 4, vest the jurisdiction of suits for divorce in the district courts of the territory, and the only provisions thereof touching alimony, counsel fees, or costs, are copied in the margin.

Pending this suit, the wife, by her counsel, moved the court to order the husband to pay her the sum of $5,000 as provisional alimony to enable her to employ counsel and defend the suit. The court made no order on the motion until its final decision of the cause upon its merits; and then, on a review of the whole evidence (which had been taken by a referee and made part of the record), held that the suit could not be maintained, overruled a motion for a new trial, allowed a bill of exceptions, and by a decree entered June 13, 1896, adjudged that the complaint be dismissed and the issues therein decided in favor of the defendant, and that she recover $750 counsel fees, and $150 a month for her maintenance from December 14, 1893, amounting in all to the sum of $5,250, exclusive of costs. On June 30, 1896, the husband appealed to the supreme court of the territory, and gave bond to prosecute his appeal.

The record of the supreme court of Arizona (a copy of which, duly certified by its clerk, was transmitted to this court) stated that on the 11th and 13th days of January, 1897, respectively, each described as 'being one of the judicial days of the January term, 1897, of the supreme court of Arizona,' orders were made fixing the times of filing briefs. The record then stated that 'on the 26th day of January, 1897, a release of part of the judgment of the lower court for alimony was filed in said court in said cause by said appellee,' and set forth a copy thereof, by which it appeared to have been signed by her attorneys of record, with no other attestation than this blank form: 'Attest, _____ _____, Clerk of the Supreme Court of Arizona.' And the release was indorsed by the clerk as filed on that day. By the release so filed and recorded, the wife 'remits, from the judgment for alimony and counsel fees recovered by the said defendant and appellee against the plaintiff and appellant herein in this cause in the district court, all of the said judgment for alimony and counsel fees in excess of the sum of $5,000, to wit, the sum of $250.'

The provisions of the Revised Statutes of Arizona of 1887, on the subject of the right of a party to remit part of the sum awarded by verdict or judgment, are copied in the margin.

On January 30, 1897, the case was submitted on briefs to the supreme court of the territory, and on February 23, 1897, that court affirmed the judgment of the district court for $5,250. The husband took an appeal to this court, which has been prosecuted by his executors since his death; and the whole case was submitted to this court on briefs.

The appellee moved to dismiss the appeal for want of jurisdiction, 'because the judgment or decree, from which said appeal purports to have been taken, is the judgment or decree of the supreme court of one of the territories of the United States, to wit, the supreme court of the territory of Arizona, affirming a judgment or decree of a district court of said territory, dismissing a bill for divorce brought by said appellant against said appellee in said district court, and awarding appellee alimony and counsel fees pendente lite; and for the further reason that the matter in dispute does not exceed the sum of $5,000 exclusive of costs.'

Messrs. L. E. Payson, A. H. Garland, and R. C. Garland for appellants.

Mr. William H. Barnes for appellee.

Mr. Justice Gray, after stating the case as above, delivered the opinion of the court: