222 P. 284 | Nev. | 1924
Lead Opinion
■ This is an action for divorce. For convenience the parties will hereafter be _referred-±a as husband and wife. The wife charged extreme cruelty in her complaint. The husband answered denying some of the facts charged and admitting others. A prior decree of divorce a mensa et thoro granted the husband by the Supreme Court of the District of Columbia was also pleaded in the answer as a bar to the wife’s alleged cause of action. She was granted a divorce. A motion for a new trial was made and denied, from which this appeal is taken.
A preliminary question must first be disposed of. The jurisdiction of the District of Columbia court to render the decree, which it is claimed operates as an estoppel on the wife in This divorce action, is challenged by her counsel. In this respect it is asserted that the decree is not based on her default entered pursuant to the constructive service of summons, but on her appearance by an attorney, which appearance it is claimed was unauthorized. Conceding that the decree is based on such appearance, we are nevertheless of the opinion that the recital thereof in the decree creates a presumption that the appearance was duly authorized, which presumption cannot be overthrown by evidence aliunde. We are not prepared to say that the evidence introduced for that purpose proves a want of authority in the attorney who appeared for the respondent in the District of Columbia court proceedings, but its introduction constituted error. In the face of a collateral attack, the authority of an attorney to appear for the person whom he assumes to represent is conclusively presumed. Pressley v. Lamb, 105 Ind. 171, 4 N. E. 682; Corbitt v.
We cannot agree with counsel for respondent that the attack made on the decree is direct and not collateral, for the reasons -assigned by him, namely: Because the decree is pleaded in the answer, and its validity denied in the reply, and because the attack is directed to the jurisdiction of the court. These conditions have no bearing upon the character of the attack made upon the decree. The distinction between a direct and collateral attack is clearly drawn. Van Fleet on Collateral Attack, sec. 3, says:
“Any proceeding provided by law for the purpose of avoiding or correcting a judgment is a direct attack which will be successful upon showing error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power.”
These definitions have been approved by this court in Martin & Co. v. Kirby, 34 Nev. 205, 215, 117 Pac. 2. Unquestionably, respondent’s attempt to avoid the effect of the decree of the District of Columbia court in the present action is a collateral attack. The appearance of the wife gave the Supreme Court of the District of Columbia complete jurisdiction to enter the decree, and it must be accorded the same effect in matters res adjudicata as the decree or judgments of state courts. Embry v. Palmer, 107 U. S. 3, 2 Sup. Ct. 25, 27 L. Ed. 346.
We come now to the final question, and a further statement of the facts is necessary to elucidate our
In the meantime, on the 28th day of October, 1921, the husband filed his action in the Supreme Court of the District of Columbia seeking a legal separation from the bed and board of the wife. The action was based on desertion and cruelty committed in the District of Columbia. In this proceeding a decree was entered in the court of the District of Columbia on the 9th day of May, 1922, granting the husband a legal separation from the bed and board of the wife.
“That marriage creates a unity of the parties which gives them one domicile, that the husband has the authority to determine where it shall be, and that consequently the wife’s follows his,'and his does not change with hers.” 2 Bishop on Marriage and Divorce, par. 125.
The wife may, however, under certain conditions acquire a domicile apart from her husband. The Supreme Court of the United States in the case of Cheever v. Wilson, 9 Wall. 108, 19 L. Ed. 604, said:
“The rule is that she may acquire a separate domicile whenever it is necessary or proper that she should do so. The right springs from the necessity for its exercise, and endures as long as the necessity continues.”
The samé doctrine is upheld in Ditson v. Ditson, 4 R. I. 87; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Aspinwall v. Aspinwall, 40 Nev. 55, 184 Pac. 810.
“Eminent authority,” says this court in the last case cited, “supports the proposition that under modern law the wife may acquire a domicile separate and distinct from that of her husband where the unity of the husband and wife is breached, as, for instance, where the husband has given cause for divorce” — citing authorities.
“The domicile of the wife is for general purposes determined to be that of the husband. By leaving him, however, if for just cause, she may acquire a residence in another state, in which she may maintain an action for divorce.” 14 Cyc. 584.
“In applying the statute of this state relative to jurisdiction in divorce proceedings, as in applying the statutes of any state,” said this court in a recent decision, cited supra, “the matrimonial domicile of one or the other of the parties to the action, it must be borne in mind, is essential to confer jurisdiction over the status of the marital relation. The complaint must allege that one or the other of the parties has a domicile within the j urisdiction of the court in addition to alleging any other facts necessary to comply with statutory requirements such as residence or presence within the county where the suit is instituted. Statutes regulating divorce' are presumed to be enacted with reference to the general law relative to the marriage relation and are to be construed with reference to that law. Marital status follows marital domicile and is independent of the corporeal presence of either or both of the parties. It is for this reason that the courts of one state are without power to annul a marital status which exists in another state. Where neither party to the suit has a domicile within the state where the action is instituted, the courts of that state are without jurisdiction of the subject-matter of the action. A state may empower its courts to dissolve the marital relation where only one of the parties has a domicile within the state, and its statutes may make it immaterial whether it be the domicile of the plaintiff or the defendant. Such, we*386 think, is the law of Nevada.” Aspinwall v. Aspinwall, supra.
For the reasons given the judgment must be reversed.
It is so ordered.
Rehearing
On Petition for Rehearing
Rehearing denied.