Custer v. Custer

126 P. 880, 41 Utah 575, 1912 Utah LEXIS 91

• Court: Utah Supreme Court
• Decided: August 17, 1912
• Docket: No. 2358
• Status: Published

Opinions

McCARTY, J.'

Plaintiff brought this action against defendant for separate maintenance on the ground of desertion. The defendant answered, denying that he had deserted plaintiff. He also filed a counterclaim for divorce on the ground that plaintiff, without cause, had deserted him. The plaintiff filed a reply to the answer and counterclaim' of defendant, denying the allegations of desertion, and charging the defendant with adultery with one Marie Custer. The court found on the issues thus made up in favor of the defendant, and on the 6th day of December, 1910¹, rendered judgment in favor of defendant dissolving the marriage relation theretofore existing between the parties. Ofi January 9, 1911, the findings of fact, conclusions of law, and interlocutory decree were filed. On July 20, 1911, the final decree, based on the same findings of fact and conclusions of law as the interlocutory decree, was duly filed and entered of which the plaintiff had notice. On January 10, 1912, plaintiff filed and served notice of appeal to this court.

1 Respondent has filed a motion to dismiss the appeal, on the ground that it was not taken within six months from the time plaintiff received notice of the finding and entry of the interlocutory decree. No new or additional findings of fact or conclusions of law were made and filed! in the case after the filing of the interlocutory decree. Nor does the final decree contain any matter not found in the interlocutory decree. In fact, appellant, by her assignments of error, d'oes not seek to review any matter not contained in. tie interlocutory decree, or in the findings of fact and conclusions of law upon which, it is based.

As we have observed, the interlocutory decree was filed and) entered January 9, 1911. The appeal was taken January 10, 1912, more than a year after the filing of that decree. Therefore none of the proceedings leading up to and resulting in the interlocutory decree are before this court for review. The case comes clearly within the doctrine announced in the case of Parsons v. Parsons, 40 Utah, 602, 122 Pac. 907, recently decided by this court. In that case it is said:

“And since plaintiff’s appeal is only from the final decree, and since she seeks no review of ahy proceeding resulting in that decree, and seeks a review only of proceedings resulting in the interlocutory decree, from which no appeal has been, and could not have been, taken at the time of this appeal, it follows that there is no reviewable question before the court.”

The .appeal in this case having been taken within six months from the time of the filing of the final decree, the motion to dismiss must be overruled; but, as the appeal presents no question for review, the judgment of the lower court is affirmed, with costs to respondent.

PRICK, C. J., and STEATJP, J., concur.