Pfueller v. Superior Court of Snohomish County, No. 2147

No. 2147 | Wash. | Feb 26, 1896

Lead Opinion

The opinion of the court was delivered by

Scott, J.

This is an application for writ of prohibition to prohibit the superior court of Snohomish •county from proceeding with a certain action brought by, Maria E. Pfueller against Ernst Pfueller in said court to obtain a divorce. The relator appeared in said action and demurred to the complaint and submitted proof that he was a resident of Douglas county in this state and moved for a change of venue to that county. The court overruled the demurrer and denied the motion, whereupon this application was made to us. The special statute relating to the' bringing of actions for divorces is §766, Code Proc., and provides that any person who has been a resident of the state for one year may file his or her complaint for divorce, etc., in the superior court of the county- where he or she may reside, and that like proceedings shall be had thereon as in civil cases.

The relator moves.for.a change of venue under §161 providing that certain actions must be tried in the county in which the defendants or some of them reside at the time of the commencement of the action, etc., and it is contended with some degree of force that the section first mentioned relates only to the commencement of actions, while §161 relates to the place of trial, and in support of his application relator cites Warner v. Warner, 100 Cal. 11 (34 Pac. 523), where the supreme court of that state held, under a statute requiring such actions to be Commenced in the county where the plaintiff had resided for three months immediately preceding its commencement, that the defendant was entitled to a. change of venue to the county of his residence. In arriving at this'conclusion'the court said that the apparent' intention in requiring the commencement of such actions in the county where the plaintiff had resided for three months or more was to give such actions publicity in the locality ‘where the plaintiff was known. This reason could not well apply-to óur statute,-for no time of residence is' required, and residence may have been obtained so recently before the beginning of the action as to give the matter no publicity.

Under this section the plaintiff could commence an action' for a divorce only in the county of her residence, and' she would have no right to commence the same ‘in the county of the defendant’s residence, where they were residing in different counties. This being so, it does not seem probable that the legislature intended that a defendant should have the arbitrary right to come in and demand a change of venue to the county where he resided, and that, being required to commence the action in the county of her residence, the plaintiff was entitled to have the cause proceed there unless a change of venue was granted by the court on some of the other grounds specified.- The complaint in this action contained no allegation as to the residence of the plaintiff, but at the hearing of the motion for a change of venue she made proof that she was a resident of Snohomish county. The complaint, of course, was defective in -.this particular, but if in fact the-plaintiff is a resident of Snohomish county, it can be amended to so allege.

Writ denied.

Hoyt, C. J.-, and Dunbar and Gordon, JJ., concur.

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Dissenting Opinion

Anders, J.

(dissenting). I think divorce cases fall within the same category as other civil actions under our statute, and I am, therefore, constrained to dissent.