199 Mo. App. 439 | Mo. Ct. App. | 1918
This is an original proceeding in prohibition brought by relatrix against her husband, Edwin M. Taubman, and Hon. Samuel Davis, as Judge of the circuit court of Lafayette county, to prevent further action in a suit for divorce filed by said Taubman in said Lafayette court, the ground of relatrix’ petition being that said Lafayette court is without jurisdiction to try the husband’s divorce suit for the reason that at the time the same was filed relatrix had already brought suit for divorce in the circuit court of Adair county and the same was, and is now, therein pending and undisposed of.
After the provisional writ was issued and the respondents had made return and relatrix had filed a reply thereto, the respondents filed a motion for judgment on the pleadings quashing the preliminary writ and dismissing the petition. This motion was heard and disposed of by the court in an opinion by Johnson, J., November 27, 1916, wherein the motion was overruled. [See, State ex rel. Taubman v. Davis, 190 S. W. 964.] No order making the provisional writ permanent was entered, however, and thereafter, upon respondents’ application for the appointment of a commission to take testimony, Hon. Nathaniel M. Shelton was appointed with directions to take testimony and report. This has been done and the case has again been argued and submitted upon the question of whether relatrix is entitled to have the provisional writ made permanent. There may be some question whether the presentation of the aforesaid motion for judgment on the pleadings did not operate as a withdrawal of the return, a confession of the facts stated in relatrix’ petition, and a supersession of the application for the appointment of a commissioner, so as to make the award of the
With one exception, possibly two, the facts involved in this litigation are undisputed and are set forth in Judge Johnson’s opinion herein above cited. It is, therefore, unnecessary to repeat them here. And at this point it may be well to say that many of the contentions now urged by respondents were considered at that hearing and determined in. that opinion, and, consequently we will not enter into a consideration of them again.
The one question of fact (or possibly two), now in dispute between the parties, and to settle which a commissioner was desired to take testimony, has reference to the residence of relatrix at the'time she brought
As barring upon the question of relatrix’ residence at the time she brought her suit, the evidence taken before the commissioner shows:
That prior to her marriage, relatrix had for thirty-one years resided with her parents at Kirksville in Adair county, but for awhile just before her marriage she had been employed in Fulton, Missouri, as Matron of the State School for the Deaf. During this time, however, she, at all times and up to her marriage with Mr. Taubman, regarded Kirksville as her home and place of residence. That upon her marriage to Mr. Taubman she went with him to Lexington, Layfayette county, Missouri, and resided there until December 17, 1915, a little over three years. That she left Mr. Taubman ’s house between nine and ten o’clock at night December 15, 1915, and went to the home of a neighbor lady and staid there till the morning of December 17, 1915, when she left Lafayette county and returned to Kirksville in Adair county. That on the occasion of her leaving her husband’s house at the above-named hour of night she was in her room with the door locked and her husband was. over the transom endeavoring to get in. That about two weeks before she left Mr. Taubman’s house she had made up her mind to go to and make Kirksville her home and residence, and during this two weeks, although under the same roof with Mr. Taubman, they were not living together as man and wife; That when she left Lexington she did so with the fixed intention never to return but to make Kirksville her home and her place of residence; that ever since her return to Kirksville she has continued
It is true that, flowing from the legal theory of an identity of person in husband and wife, the law regards the domicile of the husband as the domicile of the wife during the period of cohabitation. But under the later and more liberal view, a wife may, for the purpose of establishing venue wherein to bring an action for divorce, make for herself a residence or domicile separate and distinct from that of her'husband. [14 Cyc. 847; Wyrick v. Wyrick, 162 Mo. App. 723, 735] And in those cases where the express object of the proceedings is to establish the fact that the marital relation ought to be dissolved, the law recognizes the wife as having a separate existence, separate interests and separate rights. [2 Bishop on Marriage, Divorce and Separation, section 120.] And, therefore, the maxim, that the domicile of the wife follows that of the husband, will not be applied so as to prevent a wife obtaining a domicile elsewhere for the purpose of bringing a divorce action, or to oust the court of jurisdiction when she has done so. [Harteau v. Harteau, 14 Pick (Mass.), 181.] For the purposes of divorce actions, the law permits separate domiciles and the maxim has no force and cannot prevail in a divorce case. [2 Bishop, sec. 112.] By necessary interpretation the statute, giving the wife right to sue for divorce, includes all needful collateral rights among which is the right to have a separate domicile. [2 Bishop, sec. 116.] In proceedings which from their very nature makes a husband and
In determining whether a person has created a domicile or “residence” in a place, we are apt to confuse the fact itself with the things that are usually considered as evidences of the fact in question. For instance, when we say a person has his “residence” in the county, the word connotes many things in ordinary meaning — a house, an accustomed place to stay, a business, etc. But “residence” in the legal meaning, and as here used, does not necessarily require these things though very frequently they are looked at to determine the ultimate fact to be proved. To create a “domicile” or “residence” as here used, only two dements are fundamentally and absolutely necessary or essential. These are actual bodily presence in the county or place combined with the freely exercised intention of remaining there permanently, or for an indefinite time at least. Whenever these two elements combine, a domicile of choice is created and all former domiciles are ipso facto abandoned. [Minor on Conflict of Laws, 114; Dicey on Conflict of Laws, 104.] “Every person of full age having a right to change his domicile . . . if he removes to another place with an intention to make it his permanent residence (animo manendi), it becomes instantaneously his place of domicile.” [Story on Conflict of Laws, 50.] “Neither presence alone nor intention alone will suffice to create a domicile of choice. Both must concur and at the very moment they do concur, the domicile is created.” “The term ‘residence’ as here used means simply the actual bodily presence of the party, if that presence is coupled with the intention to remain permanently.” [Minor on Conflict of Laws, 115.] It is not necessary that the intention should be to remain
It is manifest from the above authorities and from a consideration of all the evidence taken before the commissioner (so earnestly asked for by respondent Taubman upon the announcement of the former opinion), that not only does it appear that relatrix created a domicile
Point is now made that the Adair court acquired no jurisdiction because the notary public before whom relatrix swore to her petition for divorce was the law partner of the attorney who prepared it for her. There is nothing either in the common law or in the statute forbidding such an act to be performed by an attorney of record, and hence the affidavit is not a nullity. [Smith v. Ponath, 17 Mo. App. 262; State v. Noland, 111 Mo. 473, 505.] In Kuhland v. Sedgwick, 17 Cal. 123, it was held that plaintiff’s attorney, being a notary public, could take plaintiff’s affidavit verifying the complaint. [See, also, Reaves v. Cowell, 56 Cal. 588, 591; Young v. Young, 18 Minn. 90; 1 R. C. L. 763-4.] There being nothing in the common law forbiddipg this, it is, therefore, “generally held that, in the absence of any statute or rule of court to the contrary, an affidavit is not defective because taken by an attorney in the cause.” [2 Cyc. 12.] [See, also, Hueston v. Preferred Accident Ins. Co., 143 N. W. 566; Hankins v. Helms, 12 Arizona, 178; McDonald v. Willis, 143 Mass. 452; Swearingen v. Howser, 37 Kans. 126; Horkey v. Kendall, 53 Neb. 522.]
This disposes of all questions raised which were not decided by the former opinion. It follows, therefore, that, if said opinion is to stand, the provisional writ should be made permanent, and it is so ordered.