The first of said actions was instituted in the Probate Court of Larimer County, and on February 19, 1875, a decree of divorce was granted therein. The second was brought in the County Court of said county, and on June 12, 1877, a similar decree was again entered.

Two of the errors assigned attack the correctness of the court's rulings, admitting in evidence the records of these divorce suits.

The Code of Civil Procedure did not become a law until October, 1877, and consequently both of these actions were brought and the service of process therein was attempted under the practice prevailing in Colorado before that instrument was adopted. Each of the records admitted in evidence shows on its face that the summons was issued and returned on the same day, and that the court relied, for its jurisdiction over the person of defendant, upon an attempted service of notice by publication.

In obtaining constructive service in this way a strict compliance with the method pointed out by statute must be observed. While experience demonstrates that this mode of giving a court jurisdiction of the person is necessary in many instances, yet courts are jealous of abuses in the application- thereof. They tolerate the omission of no material step required by law in connection therewith. The statute at the time these actions for divorce were commenced commanded the "usual exertion, on the part of the sheriff, to serve the summons," notwithstanding the proceedings by publication. Revised Statutes of Colo. ch. 13, § 8.

And it has been held by this court that in divorce suits under that practice "a return non inventus before the return day of the writ would, not support a notice by publication, and left the court without authority to proceed to judgment." Clayton et al. vs. Clayton, heir, etc. 4 Colo. 47; Vance's Heirs vs. Maroney, etc. 4 Colo. 47; Palmer vs. Cowdry, 2 Colo. 6.

Neither the Probate nor the County Court, in these actions, had obtained jurisdiction over the person of defendant; both were without authority to "proceed to judgment," and consequently both decrees were absolutely void.

But it is argued by counsel: First, that these decrees are not subject to collateral attack in this proceeding; second, that in any event the finding of the County Court in the latter that "due service by publication has been had on said defendant," is conclusive upon the question of service, and fortifies that decree against such an attack.

There is some conflict of authority upon the question as to whether in an attempt to secure constructive service by publication any presumption of regularity will be indulged in, the record being entirely silent. It has been held that a compliance with the material requirements of the statute must appear on the face of the record. On the other hand, courts of high authority have announced that such presumptions are applicable to the proceedings of courts of superior jurisdiction whether such proceedings rest upon actual or constructive service. It is unnecessary, however, for us in the case at bar to determine this question.

For where the record is not silent on this subject, and where it affirmatively appears therein that the court did not have jurisdiction of the person, certainly no such presumption can be indulged in. Clayton vs. Clayton, supra; Galpin vs. Page, 18 Wallace, 336.

And the finding in one of these records that due service of process had been had is not conclusive. We are not prepared to accept, without qualification, the doctrine upon this subject stated in Goudy et al. vs. Hall, 30 Ills. 116, relied upon by counsel for plaintiff in error; the opinion in that case seems to hold that the finding in the record of due and legal service is only prima facie evidence of that fact and may be attacked in a collateral proceeding. Interpreted or understood without condition it modifies the beneficent rule that judicial records import absolute verity. And its effect would be to subject them in many instances to collateral attack, where upon principle and authority they should be held conclusive.

In Harris vs. Lester et al. 80 Ills. 307, the court use the following language with reference to a similar finding of service by the court which tried the cause: "In all collateral proceedings we entertain no doubt such finding is sufficient evidence of service by publication as to defendants, nothing appearing in the record to the contrary, and to warrant the decree as in cases of regular notice by publication." This may fairly be said to modify the position taken in Goudy vs. Hall, and is we think in accord with the weight of authority.

It sanctions the view that where, as in the case under consideration, the record expressly recites the facts relied upon as constituting service, and those facts show clearly that no jurisdiction of the person was obtained thereby, it would be absurd to pronounce conclusive and binding, a declaration therein that legal service was had. The record stultifies itself, and is not protected by the rule that such findings are decisive of the question in collateral proceedings.

The divorce records before us were offered by the parties to be directly and materially benefited thereby, and we are clearly of opinion that they were subject to collateral investigation.

In 1877 the legislature passed the following act, which was approved by the Governor on the first day of March, viz:

"WHEREAS, The Probate Courts of certain counties have heretofore exercised jurisdiction in divorce cases, and various parties have obtained decrees of said courts granting divorces, with the belief that the courts possessed jurisdiction in relation to said matters; and

"WHEREAS, Doubts exist as to the validity of said proceedings, and as to the right of said courts to exercise jurisdiction in the said matters;

"THEREFORE, Be it enacted as aforesaid: "That all proceedings of any Probate Courts, the jurisdiction of which is or may be questioned as aforesaid, heretofore had in any case, so far as the same or any part thereof relate to the matters aforesaid, and to the jurisdiction of the courts therein, be and the same are in all respects legalized.'" General Laws, § 925.

It was generally supposed that the Probate Courts of the Territory of Colorado had no jurisdiction in divorce proceedings; that such actions could only be brought and determined in the District Court. The correctness of this supposition is questionable in view of the chancery jurisdiction conferred upon Probate Courts by the amendment to the Territorial Organic Act, approved March 2, 1863. Revised Statutes, p. 38, §3.

But the State legislature, as appears from the foregoing act, shared sufficiently in the general belief on the subject to attempt to neutralize the effect of the supposed errors in question.

Counsel for defendants in error contend that this legislative enactment rendered valid and binding the decree of the Probate Court in 1875. They argue that although in that case the court may have had no jurisdiction either of the subject matter or of the person of defendant, this act was intended to and did cover and cure these defects.

Our State Constitution provides that the General Assembly shall pass no local or special laws for granting divorces. This provision deprives the legislature of the authority existing under the territorial organization to divorce husband and wife by statute. It still has power to declare what shall be necessary to constitute a valid marriage, and what grounds shall be sufficient to authorize a divorce; it may also provide the method of procedure by the courts upon application thereto for such relief. But it can not, under this constitutional provision, assume judicial powers and sever the bonds of matrimony in a given

case.

If the legislature in 1877 could not do this directly, could it accomplish the same result indirectly? Could it, by statute, give validity to the decree of a court which was absolutely lifeless and void for want of jurisdiction over the person against whom it was rendered?

The legislature may, by statute, validate judicial proceedings, when the statute is only in aid thereof and tends to support the same, by precluding parties from taking advantage of errors or irregularities which do not affect their substantial rights. But it can not, by retrospective legislation, give validity to previous judicial proceedings which were void for want of jurisdiction over the parties. Two reasons may be assigned for this inhibition: First, because it would be an exercise of judicial power not contemplated by our constitutionsee Art. III; second, because it would operate to deprive parties of their "day in court;" property rights might be divested without notice to those interested, and without giving them the opportunity to be heard. See § 25 Bill of Rights; Mason, vs. Eldred, 6 Wallace, 239; Cooley on Const. Lims. *107, and cases cited in notes.

A decree of divorce generally affects the property rights of the parties as well as their marital relations. Israel vs. Arthur, 2 Colo. L. R. 319.

"Upon this question we can not doubt or hesitate. They (the legislature) can no more impart binding efficacy to a void proceeding than they can take one man's property from him and give it to another. Indeed to do the one is to accomplish the other." McDaniel vs. Correll, 19 Ills. 226.

"If it was competent for the legislature to make this declaration, then it was competent for it to have declared that to be a judgment which before was no judgment, and binding upon the party against whom it was rendered, when before he was not bound at all; for such is the direct result. It is a proposition: not to be discussed at this day, that the legislature has no such power." Nelson vs. Roundtree, 23 Wis. 470; See Pryor vs. Downey, 50 Cal. 403; Wade on Retroactive Laws, § 164.

The statute of 1877 can not be held to cure the defect of want of jurisdiction over the person of defendant in the divorce action of 1875. It is doubtful if the legislature intended this statute to produce any such consequence. The act itself, viewed in the light of the "whereases" prefixed thereto, seems to indicate

that it was simply the intention to remedy the defect of want of jurisdiction over the subject matter, where the court had complied with the law in obtaining jurisdiction over the person. It is unnecessary for us to consider the constitutionality of the act, in this view of its supposed design and operation, further than is necessarily implied by the foregoing discussion.

The records of the divorce proceedings should have been excluded by the court; for errors in admitting them the judgment must be reversed and the cause remanded.

We may deplore the effect of these conclusions in this particular case. But the consideration of hardship to these defendants therefrom must not be permitted to influence our judgment upon the questions presented. In the language of Mr. Justice Elbert, in Clayton vs. Clayton, supra: "It can not avail against the greater hardship of concluding parties by adjudications of their most sacred rights in proceedings of which they have no notice, and to which they have never appeared." Reversed and remanded.

[No. 800.]

E. T. WELLS ET ALS. vs. GEORGE S. ADAMS.

Appeal from the District Court of Custer County.
Opinion Filed December 4, 1883.

Attorney's Services.-The value of an attorney's services in a given case is to some extent governed by the amount in controversy, and the consequent responsibility.

Evidence of contents of lost instrument-when admissible. Preliminary proof of loss. HELM, J.-Appellants are and were in May, 1879, co-partners in the practice of the law. The firm was at that time engaged in prosecuting a certain cause known as the Bull-Domingo suit, then pending in the District Court of Custer County. Macon, one of the partners, being on the ground in charge of the case in behalf of himself and co-partners, employed appellee (a local attorney at law) to assist in the trial thereof, promising him a "good fee" for his services in connection therewith. The cause was tried, occupying some ten or twelve days, and appellee assisted as counsel therein. Failing to secure such compensation as he deemed his services worth, appellee brought suit and obtained a verdict and judgment against appellants for the sum of $2,500. Neither of appellants was present at this trial, though they were represented by counsel; no evidence was offered in their behalf and the verdict was based exclusively upon the testimony,introduced by appellee.

It appears that appellants took charge of the Bull-Domingo case for a contingent fee, and were to furnish all of the legal services necessary in the management thereof, and appellee and one Hunter were permitted to testify that appellants received $42,500 for the services rendered. In determining the value of appellee's labor, the jury doubtless took into consideraton the amount of this fee, and were governed to some extent thereby.

There was no contingency as to appellee's compensation for his services. Appellants were bound, if at all, to pay him a good fee whether they received

anything or not. His compensation did not depend in any way upon success in the case; theirs rested entirely upon the contingency. He was to be well paid for the services actually rendered; they might bear most of the responsibility and perform the lion's share of the work and yet receive no remuneration whatever therefor. Had appellants been unsuccessful in that cause and received nothing for their labor and responsibility, they could not have reduced the amount of appellee's recovery by proving that fact in this case.

The value of an attorney's services in a given case is to some extent governed by the amount in controversy, and the consequent responsibility resting upon him. A larger fee is usually charged and received for the management of a cause involving $50,000, than for similar services in a controversy over $50. And we are not disposed to say that the court erred in admitting proofs showing the value of the property at stake in the Bull-Domingo suit, though appellee was only assistant counsel therein, and bore but a small part of the responsibility. But we can not, by any satisfactory reasoning, extend this rule so as to sanction the court's action in admitting proof as to the fee received by appellants.

The court also erred in allowing the witness Moorman to answer the hypothetical question put to him. Moorman, who was a practicing attorney, was called for the purpose of giving his opinion as to the value of the services rendered by appellee. The question put to him supposed that the party occupying the position of appellants, received $42,500 for services rendered, and it also contained a supposition that appellee was engaged fifteen or twenty days in the preparation and trial of the case; whereas his own testimony limits the time to ten or twelve days. It is only reasonable to infer that Moorman considered these elements of the question, and in consequence thereof placed his estimate of the value of the appellee's services higher than he otherwise would.

Witness Hunter was permitted to testify to declarations made by one Wilson concerning the employment of appellee by Macon. Wilson was not a party to the record, and had no connection with the controversy; his declarations were purely hearsay, and should not have been admitted.

Appellee, while testifying, stated the contents of a letter received from appellant Wells. The only evidence as to the loss of this letter is given by him, as follows: Question.-"Have you got that letter?" Answer.-"I have not. I have hunted my office over for it." Question.-"Have you made dilligent

search for that letter?" Answer.-"I have."

The proof of dilligence used in searching for a lost instrument, required as a foundation for the admission of oral evidence concerning the contents thereof, depends to some extent upon the nature of the instrument lost. 2 Best on Evidence, § 482.

The contents of a letter, or the superscription upon an envelope, which is not likely ever to become useful, might be shown by parol upon more slender proof of loss than would be required in the case of an important contract.

But such secondary evidence as to the contents of any document should not be admitted, unless the preliminary proof of loss shows a bona fide and unsuccessful search in the place where the lost instrument was deposited and last seen, or where it was most likely to be found. if the circumstances admit of such proof. 1 Wharton's Evidence, § 147.