160 P. 22 | Nev. | 1917
Lead Opinion
By the Court,
This is an appeal from a judgment rendered by the district court of the Second judicial district and from an order denying appellant’s motion for a new trial.
The action in the lower court was one for divorce. The judgment and decree rendered by the court below was as follows:
"It is therefore ordered, adjudged and decreed that the court is without jurisdiction in said cause; and it is therefore ordered, adjudged and decreed that the plaintiff take nothing by this action. ”
By this decree as entered and found in the records, it must be assumed that the court dismissed the proceedings for want of jurisdiction.
While it might appear that the court attempted to make findings on the merits of the case, it will not be presumed here on review that such was in reality the intention of the court, inasmuch as the court by its judgment and decree found itself without jurisdiction to entertain the cause. If the court was without jurisdiction, either by reason of the subject-matter of the action or by reason of the failure of the parties to bring themselves within that jurisdiction, it will not be contended, we apprehend, that the court had any power to determine the merits of the action. Nor do we assume, in view of the form of the judgment, that the court in reality attempted to determine the case on its merits.
In this proceeding, we are confronted with a situation
Section 1 of appellant’s complaint in the court below sets forth:
"That plaintiff resides in the city of Reno, county of Washoe, State of Nevada; and that said defendant is at the time of signing and filing of this complaint within the jurisdiction of this court and that service of the summons and other process may be made upon him in Washoe County, Nevada.”
Our divorce statute, enacted by the legislature of 1915, approved February 23,1915, is in part as follows:
"Sec. 22. ” Divorce from the bonds of matrimony may be obtained, by complaint under oath, to the district court of the county in which the cause therefor shall have accrued, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either the county in which the parties last cohabited, or in which the plaintiff shall have resided six months before suit be brought, for the following causes. * * * ” (Stats. 1915, p. 26, amending Stats. 1861, c. 33.)
The power of our legislature to enact this statute, and others of similar nature, wherein that body, representing the people of the state, seeks to regulate marriage and divorce, will, we apprehend, not be questioned. As was said by Mr. Chief Justice Talbot in his concurring opinion in the case of Tiedemann v. Tiedemann, 36 Nev. 501:
" Generally speaking, the marital status of the citizen, the age of consent, the manner in which marriage may be solemnized, the obligations it imposes affecting personal or property rights, the time, condition of residence and causes required for obtaining divorce, are all within ■the control of the state and subject to her laws as enacted by the legislature. ”
We have here before us, then, the policy of our state applicable to the subject of divorce as that policy is framed and enacted by the legislature, the representatives of the people. The courts have neither the power
The complaint in this action makes the specific allegation that plaintiff resides in the city of Reno, county of Washoe, State of Nevada; and further that the defendant at the time of signing and filing of the complaint was within the jurisdiction of the court and that service of summons and other process might be made upon him in Washoe County, Nevada. The return of the sheriff shows that the summons was personally served upon the defendant, Frederick Charles Merritt, within Washoe County. The appellant in this action sought to confer jurisdiction upon the district court of Washoe County under the third condition as we have above enumerated them, namely, by the allegation that the defendant was to be found within Washoe County and hence within the jurisdiction of the Second judicial district court.
1. In the case at bar, as in all cases of a similar character, the important question to determine is that of jurisdiction. In determining this we must look to the
2. That she may acquire a separate and distinct domicile from that of her husband is a rule established by the courts of England (2 Bish., Marriage and Divorce, sec. 63), as well as by the courts of the several jurisdictions in the United States (Frary v. Frary, 10 N. H. 61, 32 Am. Dec. 395; Tolenv. Tolen, 2 Blackf. [Ind.] 21 Am. Dec. 742; Moffatt v. Moffatt, 5 Cal. 280; Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1; Succession of Benton, 106 La. 494, 31 South. 123, 59 L. R. A. 135). The right of the wife to acquire and maintain a separate domicile from that of her husband arises out of the necessity presenting itself in the case and is based upon the assertion on the part of the complaining wife of grounds or causes by reason of which the matrimonial unity no longer exists in fact. (Atherton v. Atherton, 155 N. Y. 129, 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650; Frary v. Frary, supra; Buchholz v. Buchholz, 63 Wash. 213, 115 Pac. 88, Ann. Cas. 1912d, 395, see note; Duxstad v. Duxstad, 17 Wyo. 411, 100 Pac. 112, 129 Am. St. Rep. 1138; Jenness v. Jenness, supra.)
3. The allegation of those causes which of themselves indicate that the marriage unity no longer exists constitutes the basis for the rule that recognizes the right of the wife to prosecute her suit for divorce in a domicile other than that of her husband. Coupled with such allegations, an averment of residence constitutes the basis of jurisdiction.
This entire matter, in so far as the wording of the statute is concerned and its meaning, force, and significance, was gone into at length by this court in the case
It will be remembered that so far as the courts are concerned, they have nothing to do with the establishment of public policy or the question of expediency; those are matters for the legislative branch of the government exclusively. It is but for the courts to interpret a statute and enforce it in the light of constitutional provisions. There is nothing in either international law or in the organic law of our state that prohibits or restricts the legislature from enacting a provision such as the statute here in question, wherein it seeks to deal with the matter of divorce between citizens or residents.
The question of fraud or collusion does not arise here. It is not presented to us in any form. If it is present in the case, the trial court, when the matter comes up anew, can determine that for itself upon the merits.
Viewing it as we do, that the case of Tiedemann v. Tiedemann, supra, was determinative of the matter as to the jurisdiction of the trial court, it follows that the judgment of the court and the order denying the motion for a new trial must be reversed.
It is so ordered.
Rehearing
On Rehearing
By the Court,
On petition of amici curix in behalf of the district court of the Second judicial district, we granted rehearing in this matter, in order that there might be presented any matter which we inadvertently or otherwise overlooked on the original hearing.
On the former consideration of this case we reversed the judgment of the trial court, on the rule as settled by this court in the cases of Tiedemann v. Tiedemann, 36 Nev. 501, 137 Pac. 824, and Presson v. Presson, 38 Nev. 203, 147 Pac. 1081; and to these authorities might be
Counsel in their petition say:
"We believe that no matter of law has arisen in this case upon which there is any difference between this court and the court below. Both courts entertain the belief, in harmony with the doctrine of both the Tiedemann and Presson cases (36 Nev. 501, 137 Pac. 824, 38 Nev. 203, 147 Pac. 1081), that bona fide residence is just as essential where the length of residence, as in this case, is not important, as where the length of residence is important. ”
Continuing, they say:
"If, then, an inspection of the evidence in this case fails to disclose that the plaintiff was a bona fide resident, it would follow that one essential was missing, and that the court was therefore justified in finding that 'the proof submitted is not sufficient to give the court jurisdiction. ’ ”
Our inclination is rather to affirm our former judgment without extended comment; but we deem it not inadvisable here to refer to the evidence as presented in this case as to the bona fide residence, of appellant. In her complaint for divorce she alleges:
"That plaintiff resides in the city of Reno, county of Washoe, State of Nevada.”
In testifying as a witness in her own behalf at the original hearing, the record discloses the following:
"Q. You may state your name. A. Evelyn Woods Merritt. Q. Where do you reside, Mrs. Merritt? A. Reno, Nevada. Q. Whereabouts in Reno? A. At the Riverside Hotel.”
By the testimony of H. H. Clark it was disclosed that appellant had been a resident of that establishment since January 16, 1916, and continuously thereafter to and including the date of the trial in the court below.
On the hearing in the lower court and after the suggestion of the trial court to the effect that he had very serious doubts as to the jurisdiction of the court in the matter, the appellant was again interrogated, and testified:
*394 " Q. Have you any other home, or claim any other home or residence than in the city of Reno? A. No.”
Following this, the court interrogated as follows:
"Q. Do you own any property in Reno? A. No. Q. In the State of Nevada? A. No. Q. Have you any business or profession or anything that engages your attention here at the present time or since you have been here. A. No; I simply live here.”
On being further interrogated by her attorney she testified:
"Q. Just one question: Your income is derived from what source principally, Mrs. Merritt? A. Several mortgages, and some bonds. Q. And some stocks? A. Bonds. Q. And when you have been in New York and other sections of the country, where have you lived, at hotels, or have you hada home? A. I have lived at hotels always. ”
Whatever may have been in the mind of the trial court from which he could arrive at the conclusion that there was a lack of jurisdictional facts presented, the record fails to disclose other than a bona fide residence within the jurisdiction. The trial court apparently took the' witness in hand, and her answers in response to his interrogatories were to the effect that she lived at a hotel in the city of Reno; that she owned no property in Washoe County nor at any other place within the state. Neither of these facts would to our mind indicate anything militating against the bona fides of her residence within the state. The time was when hotels and inns were not regarded as permanent places of abode, but in this modern day and age no such intimation or presumption is justified. So far as the showing made in the court below was concerned, the facts disclosed were sufficient, in our judgment, to warrant the court in assuming jurisdiction and rendering the decree prayed for. Both parties were before the court. Service of summons was made within the county. The facts presented in the court below, as disclosed by the record, sustained the allegations in the complaint of appellant, and it is our judgment
In the case of Aspinwall v. Aspinwall, supra, we reasserted the rule that the question of residence is one that may depend on the act and intention of the party seeking to establish the same.
There was nothing disclosed by the testimony of the appellant, neither was there anything indicated by her acts or conduct, as we find them, that would go to say that her residence in the county was other than bona fide, and certainly nothing to justify an inference contra.
The judgment of the lower court is reversed, with instructions to that tribunal to enter the decree of divorce as prayed for.
It is so ordered.