Opinion
No. 18,358.
Decided November 2, 1959.
While writ of error was pending to review orders entered in divorce action, the plaintiff in error died.
Writ of Error Dismissed.
1. APPEAL AND ERROR — Death of Plaintiff in Error — Survival of Actions. Plaintiff in error having died after matter was at issue in the Supreme Court, orders of the trial court pertaining to alimony and support being in personam do not survive, and the writ of error will be dismissed.
2. Death of Plaintiff in Error — Matters Undetermined. Legal problems arising subsequent to the death of plaintiff in error, not having been tried, cannot be presented for the first time in the Supreme Court.
Error to the District Court of the City and County of Denver, Hon. Joseph E. Cook, Judge.
Mr. ROBERT L. GEE, Miss JANE WOODHOUSE, Mr. LEONARD V. CARLIN, for plaintiff in error.
Mr. GEORGE O. BAKKE, Mr. THEODORE EPSTEIN, for defendant in error.
Since this writ of error has been at issue plaintiff in error has died. The orders of the trial court pertaining to alimony and support money being in personam do not survive. The order for attorney fees is not arbitrary or capricious, and we find it to be well within the sound discretion of the trial court. All other matters raised in the brief are moot.
Legal problems which have arisen since the death of plaintiff in error and which have not yet been tried cannot be presented in this court for the first time even though we permitted the administratrix of plaintiff in error's estate to be substituted in this action as plaintiff in error.
The writ of error is dismissed.
MR. JUSTICE SUTTON and MR. JUSTICE HALL concur.