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have examined the complaint made as to the It is said that the charge embraces an atadmission of improper testimony, and find tempt to rob, larceny from the person, and nothing to merit extended consideration. grand and petit larceny. If it be admitted The evidence complained of was mainly in that the charge does embrace these crimes. tended to show the degree of force used and it must be conceded that the evidence does on a trial for robbery this is a proper subject not. The only evidence of larceny is conof proof. State v. Alexander, supra.

nected with the assault, and is entirely cirAgain, complaint is made of the giving of cumstantial as to the identity of the thief. certain instructions and of the refusal to It is that when assaulted and beaten into give others requested by appellant. No at insensibility the prosecuting witness had the tempt is made to comply with the require money and his assailant, the appellant, was ments of rule 10 (79 Pac. ix) and since at the only person present, and that when the tention has so frequently been called to next person who is known to have come into this matter we would be justified in ignoring the presence of the prosecuting witness arthe objections. The great number of cases rived there the money and the watch were decided at each session renders it impossible gone. There is no evidence that appellant atfor each member of the court to personally tempted to take the articles and failed, and no read the entire record of each case as there evidence that he took them except the ciris only one copy of the record provided. cumstances connected with the assault and Each member, however, is provided with the subsequent possession of like articles by copies of the briefs in each case, and if rule him. He was guilty of robbery in the first 10 be complied with each member may degree if guilty of any of the minor crimes easily gain an intelligent understanding of

specified, and hence the contention cannot the questions involved, and the business be maintained. of the court be thereby greatly facilitated. We have examined all of the requests In a case of this importance, however, we for further instructions submitted by the are unwilling to rigidly enforce the rule and appellant, and find that so far as they are bare, in fact, examined all the instructions correct statements of the law they are emil!d requests to which our attention is called.

bodied in the instructions given by the court. It is contended in objection to instruction The appellant appears to have had a fair No. 4, given by the court that it limits the trial, and to have bad accorded to him every consideration of the jury to one degree of legal right, and the judgment of conviction the crime of robbery, viz., the first degree. I is affirmed. All the Justices concurring.

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(31 Utah, 213)

and had their marriage domicil in the state STATE ex rel. ALDRACH v. MORSE, Judge. of Utah until September, 1904, when said

(Supreme Court of Utah. Nov. 20, 19906.) Aldrach willfully, and without cause or ex1. DIVORCE - ACTION -- STATE COURT-JURIS cuse, deserted and abandoned the petitioner, DICTION-DOMICILE.

and continues to willfully and without cause Where a husband and wife were married so to do; further, that said Aldrach being and resides in Utah, where the husband abandoned the wife, the matrimonial domicile was

able so to do has willfully neglected to proin that stiite, which was all that was essential vide for petitioner and her child, the fruit to confer jurisdiction on its courts to decree a of said marriage, the necessaries of life, and divoree. though the husband could not be

continues to neglect to so provide for her personally served there.

and said child. As conclusions of law the (Ed. Yote.-For cases in point, see Cent. Dig. vol. 17, Divorce, $ 21-1.]

said court found that the petitioner, plaintiff 2. SAME-CHASGEMARANDONMENT OF WIFE.

in said action, is entitled to a decree of diWhere a husband abandons liis wife and vorre, but concludes further, inasmuch as moves to another state, such abandonment does said Aldrah did not appear in said action not affect the matrimonial domicile for the pur

for divorce and was served with process by poses of an action for divorce by the wite, and draw the same to the domicile of the husband.

publication only, while being absent from

the state of t'tah, that therefore the district Application for writ of mandate by the

court had not acquired jurisdiction of said state, on relation of Emma K. Aldrach,

Aldrach, and upon that ground alone refused against C. W. Morse, judge of the district

to grant petitioner the decree of divorce. court of the Third judicial district. Relief

It further appears from the record in said granted.

case that said Aldrach was a nonresident S. P. Armstrong, for petitioner. S. R.

of the state of Utah at and prior to the time Thurman and Dey & Hoppaugh, amici curiæ.

said action for divorce was commenced, and FRICK, J. On the 14th day of July, 1906,

was a resident of the territory of Arizona.

The foregoing is a nere skeleton or outline Emma K. Aldrach, the petitioner herein, filed

of the facts stated in the petition upon which her affidavit and petition in this court pray

the petitioner prayed that the Honorable ing for a writ of mandate, wherein she

C. W. Worse, as judge of said district court, states. in substance, the following facts: That

be required to show cause to this court why on the 6th day of December, 1905, she duly

a peremptory writ of mandate should not filed her complaint against William K. Al

issue against him requiring him to assume drach, her husband, in the district court

jurisdiction of said action for divorce anal of Salt Lake county, Utah, in which, as ap

enter a decree in favor of the petitioner upon pears therefrom, she alleged the necessary

the findings of fact and conclusions of law facts which entitled her to a decree of divorce

made and signed by him in said case. upon the grounds of willful desertion and

The for willful failure to support. She alleged petition is duly verified, and upon being preher residence as being and having continued

sented to this court the then Chief Justice to be in Utah ever since her marriage to

issued an alternative writ of mandate directsaid Aldrach, and that she and said Aldrach

ed to the respondent herein, of which he were married in Utah, and were husband and

duly admitted service, and in due time filed wife. She further sets forth in her petition

his answer thereto, in which he practically all the facts necessary to confer jurisdiction

admits all the facts stated in said petition, upon the district court aforesaid in an action

but states that he is advised that in virtue

of a decision in the case of Iladdock v. Hadfor divorce granted upon what is generally known as "constructive service." It further

dock, rendered by the Supreme Court of the appears that due service by publication was

United States, 26 Sup. Ct. 525, 50 L. Ed. 867.

an enforceable decree of divorce could not had in conformity to the law of this state,

be rendered in a case where the service urthat the defendant in said action for divorce

on an absent defendant therein was by publifailed to appear therein, and that c. W. Morse, the judge of said district court, the

cation only, and no appearance by him was respondent herein, upon a hearing of said

made in the case, and that upon that ground cause, duly made and filed findings of fact

alone he refused to render a decree of divorce and conclusions of law, in substance as fol

in the action aforesaid. The applicant will lows: That the defendant in said action,

be designated "petitioner," and the judge will William F. Aldrach, was duly served with

be styled "respondent" in this opinion. summons by publication; that the petition

The only question for solution upon the er and Aldrach were married at Salt Lake

foregoing facts is, should the respondent be City, Utah, on the 24th day of May, 1893, and

required to assume jurisdiction of the divorce are husband and wife; that the petitioner,

action, and in view of the findings of fact plaintiff in said action, had been and was

and conclusions of law made and filed by an actual bona fide resident of Salt Lake him, as judge of the district court of Salt City for more than one year immediately Lake county, proceed to a completion of said preceding the commencement of said action; action by granting a final decree of divorce that the petitioner and said Aldrach cohabited to the petitioner? It seems to us there is but together as husband and wife, and lived here one answer possible to the foregoing proposi

S7 P.-45

tion, which must be in the affirmative. Every the wife deserts him, but the wife may not essential element necessary under our law, do so when the husband abandons the wife? both substantive and of procedure, is present This would be contending not only for an ilin the divorce proceeding to entitle the peti-logical, but to our minds an absurd, result. tioner to a decree of divorce. Neither do we The Supreme Court of the United States, in think that the case of Haddock v. Haddock, the quotations above given, clearly points out 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, that the fiction that the domicil of the huscan possibly be applied so that a different band is that of the wife does not apply where, result could be reached. As we read that as in this case, the husband has wrongfully case, the one essential to confer jurisdiction abandoned the wife. In such a case the husupon a state court in divorce proceedings is band cannot draw to himself, by virtue of what is denominated in that case "domicil of that fiction, the domicil of the wife; but the matrimony," and that such domicil must be matrimonial—that is, the jurisdictionalwithin the state where the action is planted, domicil remains with the wife, and within and be with the party bringing the action. the state of that domicil. In fact, this is just If such a domicil exists, then the state courts what is decided in the Haddock Case, as we have full power to sever the marital relations understand it. upon constructive service in cases where We remark here, as it seems to us from a statutory residence and a cause for divorce close analysis of the decision in the Haddock coexist.

Case, that the matters therein really decided, As we view it, the pith of the whole matter which at first blush seem somewhat revoluis stated in Haddock v. Haddock, supra, at tionary, as regards divorces granted on conpage 570 of 201 U. S., page 527 of 26 Sup. Ct. structive service, are after all more apparent (50 L. Ed. 867), where Mr. Justice White, than real. The whole difficulty arises out of speaking for the majority of the court, says: the fact that both bench and bar have assum"Where the domicil of matrimony was in a ed the law to be a certain way in divorce proparticular state, and the husband abandons ceedings, in the absence of an authoritative his wife and goes into another state, in order declaration, which is now made for the first to avoid his marital obligations, such other time by the Supreme Court of the United state to which the husband has wrongfully fled States in the Haddock Case. The rule estabdoes not, in the nature of things, become a lished in that case, as we understand it, may, new domicil of matrimony, and therefore is for want of a better statement perhaps, be not to be treated as the actual or constructive formulated as follows: Divorces may be domicil of the wife. Hence, the place where granted by state courts upon constructive the wife was domiciled when so abandoned service where statutory cause and residence constitutes her legal domicil until a new ac coexist, which become binding upon the partual domicil be by her elsewhere acquired.” It ties, the courts of all states, and upon all is further said, at page 571 of 201 U. S., page persons: (1) In cases like the one at bar, 528 of 26 Sup. Ct. (50 L. Ed. 867): "So, also, where the parties are residents of the state at it is settled that where the domicil of a hus- the time of the marriage, and thus establish band is in a particular State, and that State a domicil of matrimony in that state, and is also the domicil of matrimony, the courts the complaining party continues this domicil of such State, having jurisdiction over the up to the time of the action. (2) In all cases husband, may, in virtue of the duty of the where the parties are married out of the wife to be at the matrimonial domicil, disre state, but come to reside in the state aftergard an unjustifiable absence therefrom, and wards and recognize the marriage relation treat the wife as having her domicil in the within the state, and thus establish a domicil State of the matrimonial domicil for the pur of matrimony therein, and the party bringing pose of the dissolution of the marriage, and the action continues this marital domicil up as a result have power to render a judgment to the time of bringing the action. (3) In all dissolving the marriage, which will be bind cases where a statutory cause and residence ing upon both parties and will be entitled to coexist where personal service is had. We recognition in all other States by virtue of the are not now concerned with the question of full faith and credit clause." If therefore, whether the courts in this state should grant the abandonment of the wife by the husband divorces in cases falling within the third does not affect the domicil of matrimony, and class, above stated, upon merely constructive it is this domicil that confers jurisdiction service, or whether they should give force and and empowers the state courts to dissolve the effect to decrees of divorce when granted by marriage relation as to both parties, and courts other than the courts of this state. such a dissolution, when made, is binding That is a question not presented by this upon all the states, under the full faith and record, and we are therefore not authorized credit clause and of the federal Constitution, to decide it. It can best be determined when how can we avoid a conclusion in this case it is presented in the proper way. adverse to the petitioner? Can it reasonably In view of the facts presented in this case, be contended that the husband may obtain a and the law applicable thereto, we are condissolution binding upon all in a case where vinced that the respondent should have grant

ed the petitioner a decree of divorce dissolv- | poration, and who had not given his consent ing the marital relations existing between to its regulating and distributing the water. her and her husband, and we so hold.

It is claimed that such fact, however, affects In concluding this opinion, we desire to the plaintiff's right to the use of the water; make our acknowledgments to Messrs. S. R. that is to say, assuming that the north and Thurman, C. C. Dey, and A. L. Hoppaugh, south bench ditches were consolidated into whom we requested to act as friends of the the south bench ditch, it gave plaintiff the court in this case, and who in that capacity right to take and use all of his water have rendered us valuable service in present through that ditch, when in fact his right to ing the questions involved.

use the water was through both. While such It is therefore ordered that a peremptory conclusion might be drawn from the aswrit of mandate be, and the same is hereby, sumption of consolidation, yet the direction granted, requiring respondent to assume juris of this court to the trial court was to award diction of the case of Emma K. Aldrach (the to plaintiff the use of the water as prayed petitioner herein) v. William F. Aldrach (her for in his complaint, which was through both husband), and that the respondent vacate the the field ditches. On the basis that the entire conclusion of law that the district court of creek contains 363 shares or acres of water, Salt Lake county has no jurisdiction of the it is conceded that plaintiff is entitled to 39 person of the defendant in said action, and and a fraction acres or shares thereof. The that he substitute therefore a conciusion of controversy in the case was mainly as to the law in conformity with the law as stated in

right of the defendant corporation to regulate this opinion, and that he enter a decree of and distribute the waters of the creek, and vivorce ilissolving the marriage relation exist also as to whether the plaintiff was entitled ing between the petitioner herein and her

to use the water every 10 or 12 days for 19 husband, the defendant in said action, and and 20 hours, as he contended, or whether grant her the relief prayed for in accordance he was entitled to use it every 20 or 21 days with the findings of fact made by him in said for 39 hours as the defendant contended. action, and the conclusion of law as modified, Both these propositions were decided in favas hereinbefore stated.

or of plaintiff, and to that ruling we still It is not deemed necessary to issue a per adhere. emptory writ in this case, not for the present It is still insisted by the respondent that, at least, as the respondent will, undoubtedly, by plaintiff's transferring water from the act on request, upon being advised of the

field ditches into the city ditch, his land can views expressed in this opinion, or upon being

be as conveniently and economically irrigated serred with a copy thereof. Neither party as through the field ditches, and that by so to recover any costs in this court.

doing such use as is claimed by him can be Writ allowed.

made of his water. But, as pointed out in

our former opinion, neither the evidence nor MCCARTY, C. J., and STRAUP, J., con

the findings show, nor does the decree grant (ur.

him, such right. As far as the evidence goes,

it shows that the plaintiff has the right to (31 Utah, 220)

the use of the water only through the field BARTIIOLOMEW V. FAYETTE IRR. CO.

ditches. Vor can we say from this record (Supreme Court of Utah. Nov. 15, 1906.) that plaintiff's land can be as conveniently On rehearing. Reaffirmed.

and economically irrigated through the city For former opinion, see S6 Pac. 481. ditch as through the field ditches. Nor can

we determine from the record the proportionSTRAUP, J. On application of the re al rights to which plaintiff is entitled to the spondent a rehearing was granted in this use of his water throughe two field ditch(ause. On further consideration of the case es. All that is made definite is that he is we are satisfied with the conclusion reach entitled to the use of the water every 10 or ed that the respondent, as a corporation, in 12 days for 19 and 20 hours. But when he its corporate capacity, has not the right to is entitled to use it through one or the other regulate or distribute the waters of the or both of the field ditches is not determined creek, the use of which belonged to the plain by the trial court. Nor can we on the record tiff. All that we have said on that question before us determine it. in our former opinion is reaffirmed by us. The case is therefore remanded to the It, however, is urged by respondent that, in trial court, with the two propositions settled making the statement that the north and (1) that the respondent, as a corporation, has south bench ditches were consolidated, we not the right to regulate or distribute the have misconceived the facts. But such state waters of the creek as against the plaintiff ment of fact is immaterial, so far as it re without his consent, and (2) that he is en lates to the right of respondent as a cor titled to the use of the water of the creek at poration to take charge of the ditches and to intervals not greater than 12 days as herecontrol the regulation and distribution of tofore indicated. The trial court is, howthe waters of the creek, as against the plain ever, directed to determine more definitely tiff, who was not a stockholder of the cor the manner of such use with respect to the

several ditches, and for such determination motion to dismiss might be made. On the the case is reopened, and either party is same day that the motion to dismiss was permitted to amend his pleadings, and to filed, plaintiff served a copy thereof on deintroduce additional evidence, if he desires. fendant's attorney. After the filing of the All costs incurred by plaintiff on this appeal, motion, the payment of the advance fee by and all costs incurred by him in the court be plaintiff, and receipt of copy of motion by low to date hereof, are to be taxed against defendant, the defendant's attorney, on the respondent.

same day, paid, or left with the clerk, the

filing fee. On January 26, 1906, plaintiff MCCARTY, C. J., and FRICK, J., concur.. served on defendant's attorney and filed with

the clerk a written notice that the motion

to dismiss would be called up for hearing on (31 ['tah, 222)

February 3, 1906. Thereafter the motion to LITTLE et al. v. BLANK.

dismiss came on regularly to be heard on (Supreme Court of Utah. Nov. 15, 1906.)

the date specified in the notice. After hear1. JUSTICES OF THE PEACE-APPEAL-FILING FEES-PAYMENT-DISMISSAL.

ing the evidence offered and the arguments Rev. St. 1898, SS 971, 972, provide that of counsel, the court sustained the motion to the county clerk shall collect $2.50 in advance dismiss, and rendered judgment against defor the benefit of the county for dismissal of. fendant for costs. To reverse this judgment, an appeal from a justice's court when such dismissal is entered on the minutes of the court.

defendant appeals. Section 370 as amended by Laws 1899, p. 74, c. 50, provides that an appeal may be dismissed

Reed & llartley, for appellant. Harrington on motion because the appeal papers were not

& Sanford, for respondent. filed in the district court and the advance fee required therefor was not paid within 30 days after the transcript was received by the clerk.

MCCARTY, C. J. (after making the foreIl cld that, where defendant in a justice's court

going statement of the case, delivered the appealed, but failed to pay the fee for filing opinion of the court). Section 971, Rev. St. the papers in the district court within the time

1898, so far as material here, provides that required, plaintiff was entitled to pay such fee and have the appeal dismissed though defendant

“the county clerk * * * shall collect in tendered the fees after plaintiff had paid them advance for the use and benefit of the county but before notice of the hearing of the motion the fees hereinafter enumerated.

* * *" to dismiss the appeal. 2. SAME-VOLUNTARY PAYMENT – WAIVER OF

Among the fees that the clerk is thus requir

ed to collect in advance are the following: RIGUT TO DISMISSAL. Where a district court clerk was pro

“For dismissal of an appeal from a justice's hibited from filing papers on appeal from a court when such dismissal is entered on the justice of the peace until the advance filing fee

minutes of the court, two dollars and fifty was paid, and the defendant who appealed failed to pay the fee within the time required, pay

cents.” Section 972, Rev. St. 1898. Section ment of the fee by plaintiff in order to move to 3750, as amended in 1899, provides, in part, dismiss the appeal. was not a voluntary pay that “on motion an appeal may be dismissed ment which waived his right to have the appeal dismissed.

for either of the following causes: (1) That

it was not taken in time. (2) That the Appeal from District Court, Salt Lake

papers were not filed in the district court, County; T. D. Lewis, Judge.

and the advance fee required therefor was Action by F. W. Little and another as

not paid within thirty days after the transcopartners against Henry Blank. A justice's

cript was received by the clerk. Chapter 50, judgment was rendered in favor of plaintiff,

p. 74, Sess. Laws, 1899. It is admitted that from which defendant appealed to the dis

the papers were not filed in the district trict court, and from an order of dismissal,

court and the advance fee paid within the defendant appeals. Affirmed.

time specified in the foregoing provision of Plaintiff brought suit against defendant in the statute. But counsel for appellant inthe city court of Salt Lake City, Utah, to sist that the payment of the advance fee by recover for an alleged breach of contract. respondent, and the filing and service of The defendant answered, and, upon a trial his motion did not preclude appellant from being had, judgment was rendered in favor paying the advance fee required by law and of plaintiff for the sum of $22. Defendant thereby maintaining his appeal, notwithappealed to the district court of Salt Lake standing the time fixed by statute for the county. The papers on appeal were received filing of the appeal papers had expired. It by the clerk of the district court December is argued that, appellant having tendered 23, 190.5. Defendant, however, failed to pay the advance fee required, by statute to the the fee required by law for filing the papers. clerk of the district court before respondent The plaintiff, on January 23, 1906, more than filed and served his notice that he would on 30 days after they were received by the clerk, a certain day call up for hearing the motion paid the fee and filed his motion to dismiss to dismiss the appeal, it was error for the the appeal. The motion recites that the pa court to dismiss the appeal. We think this pers were not filed in the district court and position is untenable. The statute expressly the advance fee paid within 30 days after provides that, on notice, appeals may be the transcript was received by the clerk, and dismissed when the papers were not filed that plaintiff paid the fee in order that the and the advance fee required therefor was

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