27 S.D. 257 | S.D. | 1911
This is an action for divorce in which defendant, answering, denied the alleged grounds of divorce, and, by way of cross-complaint, set forth facts which she claimed entitled her to, and she asked for, a decree of separate maintenance, but did not ask for a divorce. The defendant denied the allegation of the complaint to the effect that appellant was a bona fide resident of this 'state, and in her cross-complaint, while setting out the fact that she had been, for a number of months, a resident -of this state, there was no allegation that she was such resident of the state at the time this action was brought, or at the time of filing the cross-complaint. The cause was tried before the court without a jury; findings of fact and conclusions of law were made and entered in favor of the defendant; and, a motion for new trial having been denied, the plaintiff appealed to this court from the judgment entered and from the order denying a new trial.
The assignments of error are very numerous; but, in so far as such assignments go to the question of the 'sufficiency of pleadings, the introduction of evidence, or the sufficiency of the evidence to sustain the findings of the trial court, we are satisfied that they show no reversible error, and no questions arise upon
Among other findings,'the trial court found that the appellant was not a bona fide resident of the state of South Dakota. The appellant concedes such finding to be correct, and, relying’ thereon, contends that inasmuch as such lack of residence upon the part of the appellant defeated the jurisdiction of the courts of this state to enter a decree of divorce in his favor, and inasmuch as the respondent -did not plead or -prove that she was a resident of this state for a period entitling her to bring a divorce action, the trial court had absolutely no jurisdiction to grant the relief prayed for by the respondent. This is the only matter that demands our consideration upon this appeal.
If the respondent had simply answered the complaint herein and had -sought separate maintenance merely as an incident to the divorce proceeding, an entirely different situation would present itself; but, in this action, she not only answered the complaint, but she demanded affirmative relief upon her part by way of cross-complaint to which cross-complain-t . the appellant replied. If, as held in many states, separate maintenance could only be granted in this state as an incident to a divorce action, then the jurisdiction of the court to grant separate maintenance to a defendant might be held to rest upon the jurisdiction of the court, over the prayer for divorce, and,o when the complaint was dismissed for want of jurisdiction of the subject-matter owing to
The appellant claims that this court had no jurisdiction to grant the relief prayed for, because the alleged wrongful conduct on the part of the appellant took place in a foreign state, and neither of the parties were bona fide residents of this state. This contention is answered by what we have said above. The conduct of the guilty party, wheresoever it may have occurred, gives rise to the right on the part of the innocent one to bring 'an action for' separate maintenance, such right of action follows the guilty one wheresoever he may go, and the wronged party cannot be debarred therefrom by the defendant’s removal from the scene of wrongdoing.
One of the grounds upon which a new trial was requested was newly discovered evidence. The facts bearing upon this question are, in brief, as follows: The respondent in her cross-complaint alleged that appellant was guilty of improper relations with one Miss Dye. This cross-complaint was served a long time
The judgment of the trial court and order denying a new trial are affirmed.