Rudolph v. Rudolph

Mr. Justice Musser

delivered the opinion of the court: -

On the 11th day of September, 1909, a decree of divorce was granted in the county court of Arapahoe county against Ella Rudolph, who is the plaintiff in error here. Nothing- more was done in the county court after the decree was granted. More than six months after the granting of the divorce, and on, to wit, September 9, 1910, the plaintiff in error sued out a writ of error from this court to review the said decree. The defendant in error has filed a motion to dismiss the writ of error because it had been sued out more than six months after the date of the decree.

Sec. 2123 of the Revised Statutes provides that ‘ ‘ a writ of error from any decree granting a divorce shall lie to the supreme court, and the practice and procedure upon such writ of error shall be as is now provided by law upon writs of error to the supreme court; Provided, That such writ of error shall be sued out of the supreme court .within six months from the date of the decree in said cause, and not after that time. ’ ’

This statute is plain. The decree of divorce was granted over eleven months before any attempt was made to sue out a writ of error to review it. The plaintiff in error contends that the *245 defendant in error has waived his right to the benefit of this statute, because he has not expressly made a special appearance for the purpose of the motion, because the motion is made for a dismissal of the writ of error and that it be stricken from the files, and because in the brief in support of the motion, a few] words were said relative to the merits of the controversy. It is the theory of the plaintiff- in error that the motion attacks the jurisdiction of the court over the person of the defendant in error. The plaintiff in error has mistaken the nature of the motion. A writ of error is a new suit. — Wise v. Brocker, 1 Colo. 550 ; Webster v. Gaff, 6 Colo. 475 ; Stout v. Gully, 13 Colo. 604 ; Haley v. Elliott, 20 Colo. 199, at 202 .

It is prosecuted in this court by a plaintiff in error against a defendant in error. This court obtains jurisdiction over the person of the latter by his voluntary general appearance in this cburt, or by the service upon him of a scire facias, or summons to hear errors. ' If the defendant in error would move to quash the summons, -or the service thereof, or the return thereon, and, a,t the same time, move to strike the bill of exceptions from the files, the motion might be of the nature which the plaintiff in error seems to regard the present motion to be, and which is contemplated in the authorities cited by her. The motion under consideration, however, is not of that character. The proviso in the aforesaid section 2123, that a writ of error shall be sued out within six months from the date of the decree and not after that time, is a statute of limitations.— McVicker v. Rouse, 44 Colo. 255 ; Haley v. Elliott, supra.

The defendant in error, by his motion, has attempted to take advantage of this statute of limitations, as a defense to the suit prosecuted against him, *246 the same as a defendant in the district or county court might attempt, by plea, either by special demurrer or in his answer, to avail himself of a statute of limitations as a defense to the prosecution of an action against him on a promissory note. He is not attacking’ the jurisdiction of the court by this motion, and, at the same time, doing something consistent with that jurisdiction, as the plaintiff in error appears to think. Of course, in an ordinary civil action, in a nisi prius court, the benefit of the statute of limitations may be waived by failure to' plead it, as has often been held by this court. So, in the present case, the benefit of sec. 2123, as a statute of limitations, may be waived. In Haley v. Elliott, supra, a similar motion was made, based upon sec. 401 of the code, which provides that a writ of error in civil actions shall not be brought after the expiration of three years, from the rendition of the judgment, and this court, on pages 2001 and 201, said:

“The bar of the statute of limitations may be taken advantage of by motion in this court, subject to being controverted by showing that the case is within the exceptions of the statute; but to be available as a defense the statute must be specially interposed in some appropriate form, and in apt time— that is, it' must be interposed at a preliminary stage of the proceeding, and before issue joined updn the ¡merits; and the protection of the statute must be thus invoked by the party entitled to it, or it will be deemed waived. The statute does not operate of its own force to divest the court of jurisdiction.”

By the present motion the defendant in error has invoked the defense of the statute before issue joined upon the merits. There has been no formal joinder in error, nor anything equivalent to it. In fact, he has done nothing except to specially inter *247 pose this defense. Under these circumstances, the defense has been interposed in an appropriate form and in apt time. The plaintiff in error has failed to controvert it, and it atroears to be complete. There is nothing to do1 but to* sustain the motion and dismiss the writ of error, and the same is accordingly done.

Motion sustained. Writ of error dismissed.

Mr. Justice White and Mr. Justice Bailey concur.