106 P. 353 | Mont. | 1910
delivered the opinion of the court.
Action for a decree dissolving the bonds of matrimony between plaintiff and defendant. The complaint was filed on May 28, 1909. The cause of action stated is that defendant was, on May 26, 1906, by a judgment of the district court of Dawson county, duly convicted of a felony, to-wit, forgery, and sentenced to a term of years in the state prison, where he is undergoing his punishment. The defendant, having been duly and regularly served with process, suffered default. "When the plaintiff offered evidence to establish her cause of action, the court, upon inspection of the complaint, concluded that since the action had not been brought within two years from the date of the judgment of conviction, and no excuse was alleged as a reason why it had not been brought within two years, the plaintiff was not entitled to relief. Judgment was thereupon rendered and entered dismissing the action. Plaintiff has appealed and submits the question whether this action was proper in the absence of an answer
Upon the theory that an action for divorce is an action to adjust private rights merely, the position of counsel would be correct, for if the provision quoted above is to be regarded as a. limitation upon the enforcement of a private right in which the public has no concern, it is left to the option of the defendant to avail himself of it or not, as he pleases. But the state makes itself a party to every marriage, in that it requires the contract to be entered into before officers designated by itself, or by the mutual and public assumption by the parties of the marriage, relation. (Revised Codes, see. 3607.) The consent of the parties is necessary, and to this extent the assumption of the relation may be said to depend upon private contract; but, when the status of the parties has once been established, it is to the interest of the state that it be permanent. Upon this condition depends the home, upon the preservation of which, in turn, depends, good citizenship and the permanency of a republican form of government. The state therefore favors the institution of marriage. For the same reason it is not favorable to divorces, and permits them only when the relations of the parties become-such that the interest of the public, as well as of their own,, requires that they be permitted to reassume their independence. It rests exclusively with the legislature to prescribe the grounds;
In Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6, this court said: “An action for divorce is peculiar in its nature, in that, besides the interests of the parties involved, the public is also* interested and for this reason the conscience of the court is appealed to by this interest not to permit the divorce unless the facts presented on the whole record justify it.” This was said with reference to the defense of condonation, not specially pleaded but appearing from the evidence as a whole. The same principle is recognized in the case of Rumping v. Rumping, 36 Mont. 39, 91 Pac. 1057, 12 L. R. A., n. s., 1197, wherein the court had under consideration section 3674 of the Revised Codes, which prohibits the granting of a divorce unless the plaintiff has been a resident of the state for one year next preceding the bringing of the action. There the allegation touching residence was held to be not a matter of defense, but a fact necessary to be alleged by the plaintiff to confer jurisdiction upon the court, and that it was the duty of the court to make inquiry, ex officio, and deny the decree unless the fact was established. The following language is quoted with approval from Dutcher v. Dutcher, supra: “It concerns the public welfare that the state should not be made a free mart of divorce for strangers, and that, amongst her own people, divorce should not become matter of free will as much as marriage—a personal right independent of public right and inconsistent with public welfare. Divorces
Counsel for plaintiff cite and rely upon the cases of Bihin v. Bihin, 17 Abb. Pr. (N. Y.) 19, and Kaiser v. Kaiser, 16 Hun (N. Y.), 602. They are both in point; but both seem to adopt the theory that the action is a mere private controversy about which the public has no conern. We agree with the rule stated in the dissenting opinion of Judge Davis, in Kaiser v. Kaiser: * ‘ The statute on which the court below refused the decree in this case is not a mere statute of limitations. It enters into, and is a substantive part of, the right or cause of action, and the party seeking the relief for which it provides must affirmatively establish, before the decree of divorce can be granted, that the action was brought within the two years specified by the statute. The action is the creature of the statute. No such action existed at the common law, and it is made a condition of the right to maintain the action that it should be brought within a prescribed time. When it appears affirmatively that the suit was
The judgment of the district court is affirmed.
Affirmed.