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have examined the complaint made as to the admission of improper testimony, and find nothing to merit extended consideration. The evidence complained of was mainly intended to show the degree of force used and on a trial for robbery this is a proper subject of proof. State v. Alexander, supra.

Again, complaint is made of the giving of certain instructions and of the refusal to give others requested by appellant. No attempt is made to comply with the requirements of rule 10 (79 l'ac. ix) and since attention has so frequently been called to this matter we would be justified in ignoring the objections. The great number of cases decided at each session renders it impossible for each member of the court to personally read the entire record of each case as there is only one copy of the record provided. Each member, however, is provided with copies of the briefs in each case, and if rule 10 be complied with each member may easily gain an intelligent understanding of the questions involved, and the business of the court be thereby greatly facilitated. In a case of this importance, however, we are unwilling to rigidly enforce the rule and bave, in fact, examined all the instructions and requests to which our attention is called.

It is contended in objection to instruction No. 4, given by the court that it limits the consideration of the jury to one degree of the crime of robbery, viz., the first degree.

It is said that the charge embraces an attempt to rob, larceny from the person, and grand and petit larceny. If it be admitted that the charge does embrace these crimes. it must be conceded that the evidence does not. The only evidence of larceny is connected with the assault, and is entirely circumstantial as to the identity of the thief. It is that when assaulted and beaten into insensibility the prosecuting witness had the money and his assailant, the appellant, was the only person present, and that when the next person who is known to have come into the presence of the prosecuting witness arrived there the money and the watch were gone. There is no evidence that appellant attempted to take the articles and failed, and no evidence that he took them except the circumstances connected with the assault and the subsequent possession of like articles by him. He was guilty of robbery in the first degree if guilty of any of the minor crimes specified, and hence the contention cannot be maintained.

We have examined all of the requests for further instructions submitted by the appellant, and find that so far as they are correct statements of the law they are embodied in the instructions given by the court.

The appellant appears to have had a fair trial, and to have bad accorded to him every legal right, and the judgment of conviction is affirmed. All the Justices concurring.

(31 Utah, 213)

STATE ex rel. ALDRACH v. MORSE, Judge. (Supreme Court of Utah. Nov. 20, 1906.) 1. DIVORCE-ACTION-STATE COURT-JURISDICTION DOMICILE.

Where a husband and wife were married and resided in Utah, where the husband abandoned the wife, the matrimonial domicile was in that state, which was all that was essential to confer jurisdiction on its courts to decree a divorce. though the husband not be personally served there.

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Divorce, § 214.]

2. SAME-CHANGE-ABANDONMENT OF WIFE. Where a husband abandons his wife and moves to another state, such abandonment does not affect the matrimonial domicile for the purposes of an action for divorce by the wife, and draw the same to the domicile of the husband.

Application for writ of mandate by the state, on relation of Emma K. Aldrach, against C. W. Morse, judge of the district court of the Third judicial district. Relief granted.

S. R.

S. P. Armstrong, for petitioner. Thurman and Dey & Hoppaugh, amici curiæ.

FRICK, J. On the 14th day of July, 1906, Emma K. Aldrach, the petitioner herein, filed her affidavit and petition in this court praying for a writ of mandate, wherein she states. in substance, the following facts: That on the 6th day of December, 1905, she duly filed her complaint against William K. Aldrach, her husband, in the district court of Salt Lake county, Utah, in which, as appears therefrom, she alleged the necessary facts which entitled her to a decree of divorce upon the grounds of willful desertion and for willful failure to support. She alleged her residence as being and having continued to be in Utah ever since her marriage to said Aldrach, and that she and said Aldrach were married in Utah, and were husband and wife. She further sets forth in her petition all the facts necessary to confer jurisdiction upon the district court aforesaid in an action. for divorce granted upon what is generally known as "constructive service." It further appears that due service by publication was had in conformity to the law of this state. that the defendant in said action for divorce failed to appear therein, and that C. W. Morse, the judge of said district court, the respondent herein, upon a hearing of said cause, duly made and filed findings of fact and conclusions of law, in substance as follows: That the defendant in said action, William F. Aldrach, was duly served with summons by publication; that the petitioner and Aldrach were married at Salt Lake City, Utah, on the 24th day of May, 1893, and are husband and wife; that the petitioner, plaintiff in said action, had been and was an actual bona fide resident of Salt Lake City for more than one year immediately preceding the commencement of said action; that the petitioner and said Aldrach cohabited together as husband and wife, and lived here

87 P.-45

and had their marriage domicil in the state of Utah until September, 1904, when said Aldrach willfully, and without cause or excuse, deserted and abandoned the petitioner, and continues to willfully and without cause so to do; further, that said Aldrach being able so to do has willfully neglected to provide for petitioner and her child, the fruit of said marriage, the necessaries of life, and continues to neglect to so provide for her and said child. As conclusions of law the said court found that the petitioner, plaintiff in said action, is entitled to a decree of divorce, but concludes. further, inasmuch as said Aldrach did not appear in said action for divorce and was served with process by publication only, while being absent from the state of Utah, that therefore the district court had not acquired jurisdiction of said Aldrach, and upon that ground alone refused to grant petitioner the decree of divorce. It further appears from the record in said. case that said Aldrach was a nonresident of the state of Utah at and prior to the time said action for divorce was commenced, and was a resident of the territory of Arizona. The foregoing is a mere skeleton or outline of the facts stated in the petition upon which the petitioner prayed that the Honorable C. W. Morse, as judge of said district court, be required to show cause to this court why a peremptory writ of mandate should not issue against him requiring him to assume jurisdiction of said action for divorce and enter a decree in favor of the petitioner upon the findings of fact and conclusions of law made and signed by him in said case. The petition is duly verified, and upon being presented to this court the then Chief Justice issued an alternative writ of mandate directed to the respondent herein, of which he duly admitted service, and in due time filed his answer thereto, in which he practically admits all the facts stated in said petition, but states that he is advised that in virtue of a decision in the case of Haddock v. Haddock, rendered by the Supreme Court of the United States, 26 Sup. Ct. 525, 50 L. Ed. 867. an enforceable decree of divorce could not be rendered in a case where the service upon an absent defendant therein was by publication only, and no appearance by him was made in the case, and that upon that ground alone he refused to render a decree of divorce in the action aforesaid. The applicant will be designated "petitioner." and the judge will be styled "respondent" in this opinion.

The only question for solution upon the foregoing facts is, should the respondent be required to assume jurisdiction of the divorce action, and in view of the findings of fact and conclusions of law made and filed by him, as judge of the district court of Salt Lake county, proceed to a completion of said action by granting a final decree of divorce to the petitioner? It seems to us there is but one answer possible to the foregoing proposi

tion, which must be in the affirmative. Every essential element necessary under our law, both substantive and of procedure, is present in the divorce proceeding to entitle the petitioner to a decree of divorce. Neither do we think that the case of Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, can possibly be applied so that a different result could be reached. As we read that case, the one essential to confer jurisdiction upon a state court in divorce proceedings is what is denominated in that case "domicil of matrimony," and that such domicil must be within the state where the action is planted, and be with the party bringing the action. If such a domicil exists, then the state courts have full power to sever the marital relations upon constructive service in cases where statutory residence and a cause for divorce coexist.

As we view it, the pith of the whole matter is stated in Haddock v. Haddock, supra, at page 570 of 201 U. S., page 527 of 26 Sup. Ct. (50 L. Ed. 867), where Mr. Justice White, speaking for the majority of the court, says: "Where the domicil of matrimony was in a particular state, and the husband abandons his wife and goes into another state, in order to avoid his marital obligations, such other state to which the husband has wrongfully fled does not, in the nature of things, become a new domicil of matrimony, and therefore is not to be treated as the actual or constructive domicil of the wife. Hence, the place where the wife was domiciled when so abandored constitutes her legal domicil until a new actual domicil be by her elsewhere acquired." It is further said, at page 571 of 201 U. S., page 528 of 26 Sup. Ct. (50 L. Ed. 867): "So, also, it is settled that where the domicil of a husband is in a particular State, and that State is also the domicil of matrimony, the courts of such State, having jurisdiction over the husband, may, in virtue of the duty of the wife to be at the matrimonial domicil, disregard an unjustifiable absence therefrom, and treat the wife as having her domicil in the State of the matrimonial domicil for the purpose of the dissolution of the marriage, and as a result have power to render a judgment dissolving the marriage, which will be binding upon both parties and will be entitled to recognition in all other States by virtue of the full faith and credit clause." If therefore, the abandonment of the wife by the husband does not affect the domicil of matrimony, and it is this domicil that confers jurisdiction and empowers the state courts to dissolve the marriage relation as to both parties, and such a dissolution, when made, is binding upon all the states, under the full faith and credit clause and of the federal Constitution, how can we avoid a conclusion in this case adverse to the petitioner? Can it reasonably be contended that the husband may obtain a dissolution binding upon all in a case where

the wife deserts him, but the wife may not do so when the husband abandons the wife? This would be contending not only for an illogical, but to our minds an absurd, result. The Supreme Court of the United States, in the quotations above given, clearly points out that the fiction that the domicil of the husband is that of the wife does not apply where, as in this case, the husband has wrongfully abandoned the wife. In such a case the husband cannot draw to himself, by virtue of that fiction, the domicil of the wife; but the matrimonial-that is, the jurisdictionaldomicil remains with the wife, and within the state of that domicil. In fact, this is just what is decided in the Haddock Case, as we understand it.

We remark here, as it seems to us from a close analysis of the decision in the Haddock Case, that the matters therein really decided, which at first blush seem somewhat revolutionary, as regards divorces granted on constructive service, are after all more apparent than real. The whole difficulty arises out of the fact that both bench and bar have assumed the law to be a certain way in divorce proceedings, in the absence of an authoritative declaration, which is now made for the first time by the Supreme Court of the United States in the Haddock Case. The rule established in that case, as we understand it, may, for want of a better statement perhaps, be formulated as follows: Divorces may be granted by state courts upon constructive service where statutory cause and residence coexist, which become binding upon the parties, the courts of all states, and upon all persons: (1) In cases like the one at bar, where the parties are residents of the state at the time of the marriage, and thus establish a domicil of matrimony in that state, and the complaining party continues this domicil up to the time of the action. (2) In all cases where the parties are married out of the state, but come to reside in the state afterwards and recognize the marriage relation within the state, and thus establish a domicil of matrimony therein, and the party bringing the action continues this marital domicil up to the time of bringing the action. (3) In all cases where a statutory cause and residence coexist where personal service is had. We are not now concerned with the question of whether the courts in this state should grant divorces in cases falling within the third class, above stated, upon merely constructive service, or whether they should give force and effect to decrees of divorce when granted by courts other than the courts of this state. That is a question not presented by this record, and we are therefore not authorized to decide it. It can best be determined when it is presented in the proper way.

In view of the facts presented in this case, and the law applicable thereto, we are convinced 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 her and her husband, and we so hold.

In concluding this opinion, we desire to make our acknowledgments to Messrs. S. R. Thurman, C. C. Dey, and A. L. Hoppaugh, whom we requested to act as friends of the court in this case, and who in that capacity have rendered us valuable service in presenting the questions involved.

It is therefore ordered that a peremptory writ of mandate be, and the same is hereby, granted, requiring respondent to assume jurisdiction of the case of Emma K. Aldrach (the petitioner herein) v. William F. Aldrach (her husband), and that the respondent vacate the conclusion of law that the district court of Salt Lake county has no jurisdiction of the person of the defendant in said action, and that he substitute therefore a conclusion of law in conformity with the law as stated in this opinion, and that he enter a decree of divorce dissolving the marriage relation existing between the petitioner herein and her husband, the defendant in said action, and grant her the relief prayed for in accordance with the findings of fact made by him in said. action, and the conclusion of law as modified, as hereinbefore stated.

It is not deemed necessary to issue a peremptory writ in this case, not for the present at least, as the respondent will, undoubtedly, act on request, upon being advised of the views expressed in this opinion, or upon being served with a copy thereof. Neither party to recover any costs in this court. Writ allowed.

MCCARTY, C. J., and STRAUP, J., con

(ur.

(31 Utah, 220)

BARTHOLOMEW v. FAYETTE IRR. CO. (Supreme Court of Utah. Nov. 15, 1906.) On rehearing. Reaffirmed.

For former opinion, see S6 Pac. 481.

STRAUP, J. On application of the respondent a rehearing was granted in this cause. On further consideration of the case we are satisfied with the conclusion reached that the respondent, as a corporation, in its corporate capacity, has not the right to regulate or distribute the waters of the creek, the use of which belonged to the plaintiff. All that we have said on that question in our former opinion is reaffirmed by us. It, however, is urged by respondent that, in making the statement that the north and south bench ditches were consolidated, we have misconceived the facts. But such statement of fact is immaterial, so far as it relates to the right of respondent as a corporation to take charge of the ditches and to control the regulation and distribution of the waters of the creek, as against the plaintiff, who was not a stockholder of the cor

to its regulating and distributing the water. It is claimed that such fact, however, affects the plaintiff's right to the use of the water; that is to say, assuming that the north and south bench ditches were consolidated into the south bench ditch, it gave plaintiff the right to take and use all of his water through that ditch, when in fact his right to use the water was through both. While such conclusion might be drawn from the assumption of consolidation, yet the direction of this court to the trial court was to award to plaintiff the use of the water as prayed for in his complaint, which was through both the field ditches. On the basis that the entire creek contains 565 shares or acres of water, it is conceded that plaintiff is entitled to 39 and a fraction acres or shares thereof. The controversy in the case was mainly as to the right of the defendant corporation to regulate and distribute the waters of the creek, and also as to whether the plaintiff was entitled to use the water every 10 or 12 days for 19 and 20 hours, as he contended, or whether he was entitled to use it every 20 or 21 days for 39 hours as the defendant contended. Both these propositions were decided in favor of plaintiff, and to that ruling we still adhere.

It is still insisted by the respondent that, by plaintiff's transferring water from the field ditches into the city ditch, his land can be as conveniently and economically irrigated as through the field ditches, and that by so doing such use as is claimed by him can be made of his water. But, as pointed out in our former opinion, neither the evidence nor the findings show, nor does the decree grant him, such right. As far as the evidence goes, it shows that the plaintiff has the right to the use of the water only through the field ditches. Nor can we say from this record that plaintiff's land can be as conveniently and economically irrigated through the city ditch as through the field ditches. Nor can we determine from the record the proportional rights to which plaintiff is entitled to the use of his water throughe two field ditch

All that is made definite is that he is entitled to the use of the water every 10 or 12 days for 19 and 20 hours. But when he is entitled to use it through one or the other or both of the field ditches is not determined by the trial court. Nor can we on the record before us determine it.

The case is therefore remanded to the trial court, with the two propositions settled (1) that the respondent, as a corporation, has not the right to regulate or distribute the waters of the creek as against the plaintiff without his consent, and (2) that he is en.. titled to the use of the water of the creek at intervals not greater than 12 days as heretofore indicated. The trial court is, however, directed to determine more definitely the manner of such use with respect to the

several ditches, and for such determination the case is reopened, and either party is permitted to amend his pleadings, and to introduce additional evidence, if he desires. All costs incurred by plaintiff on this appeal, and all costs incurred by him in the court below to date hereof, are to be taxed against respondent.

MCCARTY, C. J., and FRICK, J., concur..

(31 Utah, 222)

LITTLE et al. v. BLANK. (Supreme Court of Utah. Nov. 15. 1906.) 1. JUSTICES OF THE PEACE-APPEAL-FILING FEES-PAYMENT-DISMISSAL.

Rev. St. 1898, §§ 971, 972, provide that the county clerk shall collect $2.50 in advance for the benefit of the county for dismissal of. an appeal from a justice's court when such dismissal is entered on the minutes of the court. Section 3750 as amended by Laws 1899, p. 74, c. 50, provides that an appeal may be dismissed on motion because the appeal papers were not 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. Held that, where defendant in a justice's court appealed, but failed to pay the fee for filing the papers in the district court within the time required, plaintiff was entitled to pay such fee and have the appeal dismissed though defendant tendered the fees after plaintiff had paid them but before notice of the hearing of the motion to dismiss the appeal.

2. SAME-VOLUNTARY PAYMENT WAIVER OF RIGHT TO DISMISSAL.

Where a district court clerk was prohibited from filing papers on appeal from a justice of the peace until the advance filing fee was paid, and the defendant who appealed failed to pay the fee within the time required, payment of the fee by plaintiff in order to move to dismiss the appeal, was not a voluntary payment which waived his right to have the appeal dismissed.

Appeal from District Court, Salt Lake County; T. D. Lewis, Judge.

Action by F. W. Little and another as copartners against Henry Blank. A justice's judgment was rendered in favor of plaintiff, from which defendant appealed to the district court, and from an order of dismissal, defendant appeals. Affirmed.

Plaintiff brought suit against defendant in the city court of Salt Lake City, Utah, to recover for an alleged breach of contract. The defendant answered, and, upon a trial being had, judgment was rendered in favor of plaintiff for the sum of $25. Defendant appealed to the district court of Salt Lake county. The papers on appeal were received by the clerk of the district court December 23, 1905. Defendant, however, failed to pay the fee required by law for filing the papers. The plaintiff, on January 23, 1906, more than 30 days after they were received by the clerk, paid the fee and filed his motion to dismiss the appeal. The motion recites that the papers were not filed in the district court and the advance fee paid within 30 days after the transcript was received by the clerk, and that plaintiff paid the fee in order that the

motion to dismiss might be made. On the same day that the motion to dismiss was filed, plaintiff served a copy thereof on defendant's attorney. After the filing of the motion, the payment of the advance fee by plaintiff, and receipt of copy of motion by defendant, the defendant's attorney, on the same day, paid, or left with the clerk, the filing fee. On January 26, 1906, plaintiff 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 February 3, 1906. Thereafter the motion to dismiss came on regularly to be heard on the date specified in the notice. After hearing the evidence offered and the arguments of counsel, the court sustained the motion to dismiss, and rendered judgment against defendant for costs. To reverse this judgment, defendant appeals.

Reed & Hartley, for appellant. Harrington & Sanford, for respondent.

MCCARTY, C. J. (after making the foregoing statement of the case, delivered the opinion of the court). opinion of the court). Section 971, Rev. St. 1898, so far as material here, provides that "the county clerk * * * shall collect in advance for the use and benefit of the county the fees hereinafter enumerated. **** Among the fees that the clerk is thus required to collect in advance are the following: "For dismissal of an appeal from a justice's court when such dismissal is entered on the minutes of the court, two dollars and fifty cents." Section 972, Rev. St. 1898. Section 3750, as amended in 1899, provides, in part, that "on motion an appeal may be dismissed for either of the following causes: (1) That it was not taken in time. (2) That the papers were not filed in the district court, and the advance fee required therefor was not paid within thirty days after the transcript was received by the clerk. Chapter 50, p. 74, Sess. Laws, 1899. It is admitted that the papers were not filed in the district court and the advance fee paid within the time specified in the foregoing provision of the statute. But counsel for appellant insist that the payment of the advance fee by respondent, and the filing and service of his motion did not preclude appellant from paying the advance fee required by law and thereby maintaining his appeal, notwithstanding the time fixed by statute for the filing of the appeal papers had expired. It is argued that, appellant having tendered the advance fee required by statute to the clerk of the district court before respondent filed and served his notice that he would on a certain day call up for hearing the motion to dismiss the appeal, it was error for the court to dismiss the appeal. We think this position is untenable. The statute expressly provides that, on notice, appeals may be dismissed when the papers were not filed and the advance fee required therefor was

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