GERTRUDE ELEANOR TIEDEMANN, Appellant, v. RUDOLPH ERNEST TIEDEMANN, Respondent
Tiedemann v. Tiedemann
GERTRUDE ELEANOR TIEDEMANN, Appellant, v. RUDOLPH ERNEST TIEDEMANN, Respondent.
[No. 2076]
GERTRUDE ELEANOR TIEDEMANN, Appellant, v. RUDOLPH ERNEST TIEDEMANN, Respondent.
1. Divorce — Jurisdiction—Residence.
Under tlie provisions of section 22 of the marriage and divorce act (Rev. Laws, 6838) a six months’ residence is essential only when the plaintiff relies alone on his or her residence. The act defining what shall constitute legal residence (Rev. Laws, 3609) only affects the character of residence where a residence is essential to jurisdiction.
2. Divorce — Jurisdiction—Residence—Collusion.
Where neither of the parties have a residence or domicile within,the state and one of the parties takes up a temporary abode for the purpose of procuring a divorce, and thereafter the other party, in collusion with the plaintiff, enters the state for the purpose of permitting service in the action, jurisdiction may not thus be conferred.
3. Divorce — Jurisdiction—Residence.
While it may be essential that one of the parties to the action for divorce must be a resident of the state, it does not follow that residence for any particular length of time is in every case essential. By statute a nonresident plaintiff may have a right of action against a resident defendant.
4. Divorce — Jurisdiction—Residence—Legislative Power.
There is no legal inhibition to the legislature giving to a resident plaintiff a right of action for divorce and in establishing jurisdiction over the subject-matter in the county where the defendant may be found.
5. Divorce — Domicile of Wife — Residence.
A wife, having a cause of action for divorce, has a right to change her domicile from that of her husband, and, where the complaint states a cause of action, it will be assumed that the domicile of the wife is identical with that of her residence.
6. Divorce — Statutory Construction — “Found” Defined.
The word “found,” as used in section 22 of the divorce act, supra, is used in the same sense that it is used in other provisions of the civil practice act relative to the service of process, and means the county in which service of summons may be had personally upon the defendant.
7. Statutes — Courts—Legislative and Judicial Functions.
A valid statute must be construed by the courts according to its meaning ascertained in accordance with established rules of construction, and, as so construed, enforced.
8. Divorce — Jurisdiction—Residence—Pleading.
Under section 22 of the marriage and divorce act (Rev. Laws, 5838) providing that “Divorce from the bonds of matrimony may be obtained by complaint, under oath, to the district court of the county * * * in which defendant shall reside
or be found,” etc., a complaint alleging that the plaintiff is a resident of a certain county within this state and that the defendant “is now within and can be found in said county” alleges facts sufficient to invest the court with jurisdiction. (Fleming v. Fleming, 36 Nev. 135, distinguished.)
McOarran, J., dissenting.
Appeal from the First Judicial District Court, Ormsby County; Frank P. Langan, Judge.
Action by Gertrude Eleanor Tiedemann against Rudolph Ernest Tiedemann for a divorce. From a judgment of dismissal for want of jurisdiction based on the allegations in the complaint, plaintiff appeals.
Reversed.
The facts sufficiently appear in the opinion.
Alfred Chartz, for Appellant.
Samuel Platt, for Respondent.
By the Court,
Norcross, J.:
This is an appeal from a judgment of dismissal of plaintiff's action for a divorce, based upon an order sustaining a demurrer to plaintiff's complaint.
The complaint in the action was filed in the First judicial district court in and for Ormsby County, on August 16, 1912. On the same day summons was issued and served on the defendant within the said county of Ormsby. Thereupon, the defendant appeared specially by his counsel for the purpose of moving to set aside the service of summons. An order was subsequently made setting aside the service. From this order an appeal was taken to this court and the order reversed. (Tiedemann v. Tiedemann, 35 Nev. 259.) Defendant, through his counsel, then filed a demurrer to the complaint upon two grounds:
" I. That said complaint does not state facts sufficient to constitute a case of action.
"II. That the court has no jurisdiction of the person of the defendant nor of the subject-matter of the action for the reasons:
" (a) The complaint does not show on its face that the plaintiff was at the time of the filing of the complaint a resident within the county of Ormsby, State of Nevada, six months immediately last past preceding the filing of said complaint.
" (b) The complaint does not show upon its face that the defendant was a resident within the county of Ormsby, State of Nevada, for six months immediately last past preceding the filing of said complaint.
' " (c) The complaint does not show upon its face that the plaintiff was a resident within the county of Ormsby, State of Nevada, for the continuous period of six months last past preceding the filing of said complaint.
" (d) The complaint does not show upon its face that the defendant was a resident within the county of Ormsby, State of Nevada, for six months continuously last past immediately preceding the filing of said complaint. "
The first and second paragraphs of plaintiff's complaint contain the only allegations relative to residence of either plaintiff or defendant. These allegations are as follows:
" I. That plaintiff is a resident of Carson City, Ormsby County, State of Nevada.
"II. That plaintiff is informed and believes, and upon such information and belief alleges the fact to be, that said defendant is now within, and can be found in said county of Ormsby, and within the jurisdiction of this court."
Section 22 of "An. act relating to marriage and divorce," approved November 28, 1861, provides: "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: ." (Rev. Laws, 5838.)
Section 1 of "An act defining what shall constitute legal residence in the State of Nevada," approved March 22, 1911, provides:
"The legal residence of a person with reference to his or her right of suffrage, eligibility to office, right of naturalization, right to maintain or defend any suit at law or-in equity, or any other right dependent on residence, is that place where he or she shall have been actually, physically and corporeally present within the state or county, as the case may be, during all of the period for which residence is claimed by him or her ." (Rev. Laws, 3609.)
In the recent case of Fleming v. Fleming, 36 Nev. 135, ante, we had occasion to consider the sufficiency of allegations in a complaint for divorce, where the plaintiff based his right of action solely upon his own residence. In that case we held "that the residence required by the statute (Rev. Laws, 5838), and contemplated by the- session act of 1911, was actual residence; that is, physical, corporeal presence, and not alone legal residence or domicile," for the period of six months within the county wherein suit was instituted.
Counsel for respondent contends that the Fleming case is conclusive against appellant on this appeal. If, as in the Fleming case, appellant in this case was relying on her own residence within the state as a basis of jurisdiction over the subject-matter of the action, the complaint, unquestionably, would be insufficient. Appellant, however, is not relying alone upon the allegations of her own residence as a basis for the court's jurisdiction, but, together with that, upon the allegation that the suit is brought within the county where the defendant can be "found."
It will be observed that by the provisions of section 22 of the marriage and divorce act, quoted supra (Rev. Laws, 5838), jurisdiction may be acquired in the court of a county when either of five different states of fact is shown to exist, to wit:- (a) In which the cause therefor shall have accrued, (b) In which the defendant shall reside, (c) In which the defendant shall be'found, (d) In which the plaintiff shall reside and the parties last cohabitated. (e) In which the plaintiff shall have resided' six m,onths before the suit was brought.
It is manifest that the territorial legislature of 1861 only intended to make a six months' residence essential when the plaintiff relied alone on his or her residence. The marriage and divorce act provided for seven distinct grounds for divorce. If both parties were in the territory or state, a cause of action might accrue, regardless of the time the parties may have been within the territory or state, under either the first, second, fourth, or sixth specification of grounds for divorce. In such an event the length of residence of either of the parties was immaterial so far as being essential to invest the court with jurisdiction. If the suit was- brought in that county where the defendant resided or was found, the length of residence of the plaintiff was likewise immaterial. If the plaintiff instituted action within the county where the parties last cohabited, a six months' residence upon the part of plaintiff is, also, not required. The act of 1911, supra, only affects the character .of residence, where residence is essential to jurisdiction.
In the Fleming case the plaintiff relied on hi& own residence for six months to establish jurisdiction in the court over the parties and the subject-matter of the action. In this case jurisdiction rests upon the allegation of residence upon the part of the plaintiff and that defendant could be found in the county in which suit was instituted. The defendant was served with summons within Ormsby County the same day the complaint was sworn to and filed. Whether the court below was invested with jurisdiction by virtue of the allegations in the complaint depends upon the construction to be placed on the word " found, " as used in the statute.
The circumstances which brought defendant from his home in Connecticut to Carson City are set forth in the statement of the case upon the former appeal from the order quashing the service of summons (35 Nev. 259). There is no contention that the defendant was within Ormsby County, at • the time the suit was instituted and the summons served, by reason of any collusion between the parties for the purpose of such a service, and the case presents no question of collusion. If neither of the parties had a residence or domicile within the state, and one of the parties took up a temporary abode therein for the purpose of procuring a divorce, and thereafter the other party, in collusion with the plaintiff, entered the state for the purpose of permitting service to be made upon him or her, as the case might be, doubtless such a state of facts would not confer jurisdiction.
None of the states, so far as we are advised, have a statute similar to the one under consideration and there are no decisions directly in point to aid in construing our statute. While we may concede, for the purpose of this appeal, that one of the parties to. the marriage sought to be dissolved must be a resident of the state, it does not follow that a residence for any particular length of time is in every case essential. A statute may permit an action by a nonresident plaintiff against a resident defendant. (Watkins v. Watkins, 135 Mass. 83; Smith v. Smith, 4 Mackey, D. C. 255.)
Although our divorce act, so far as the question here involved is concerned, has remained unchanged from the date of its enactment, more than half a century ago, it has never before become necessary for this court to construe its peculiar provisions. The act was not borrowed from any of the then existing Pacific coast states or territories. Whether its provisions were taken from the laws of some eastern state or territory or originated with the argonauts who composed the first territorial assembly, we are not at this time advised. Suffice it to say it was adopted as the law of the territory and by the provisions of the constitution became a part of the laws of the state. The legislature of 1913 adopted an amendment to section 22, supra, which takes effect January 1, 1914, adding the proviso "that when at the time the cause of divorce accrues, the parties shall not both be bona fide residents of the state, no court shall have jurisdiction to grant a divorce, unless either the plaintiff or the defendant shall have been a bona fide resident of the state for a period of not less than one year next preceding the commencement of the action." (Stats. 1913, p. 10.) As that amendment was not in force at the time the action was brought, it does not affect rights of action instituted prior to the time the amendment is in effect.
We can find no legal inhibition to the legislature giving to a plaintiff, who is a resident of the state, a right of action for divorce and establishing jurisdiction over the subject-matter of the action in the county where the defendant may be found. Whether the legislature would have such power in case both parties were nonresidents and there was no collusion, it is unnecessary to consider.
For the purpose of the demurrer it is admitted that the plaintiff is a resident of the state, and it will be assumed that her domicile is identical with her residence, as it is not contended that the complaint does not state a cause of action for divorce. (Bishop on Marriage and Divorce, vol. 2, sec. 124.)
When, then, may a defendant be said to be "found" within the meaning of the statute? It is clear from the statute that the word "found" is used in contradistinction to the word " reside. " The action then may be instituted by a resident of the state in a court of a county, regardless of the residence of the defendant, if it is alleged that he can be found within the county where suit is instituted and is actually served with process therein.
There is nothing in the language of the statute to indicate that the legislature in using the word ' found" intended to use it in any sense other than it is frequently used in statutes relative to the service of process. The same legislative assembly which adopted the marriage and divorce act (session of 1861) adopted a civil practice act which provides that" summons shall be served by the sheriff of the county where the defendant is found." (Stats. 1861, p. 318.) The word is used in other sections relative to service and has been so used in every civil practice act since adopted. It is used in the practice acts of most, if not all, the states, to mean the county in which the service of process may be had personally upon the defendant. As no other reasonable meaning to be applied to the word suggests itself, we feel constrained to apply the same meaning which the word imports when used in other provisions of law relative to the service of process.
As the legislature had the power to enact this law, we have no province other than to construe it according to its meaning and, so construed, to enforce it.
It is our conclusion that the complaint alleges sufficient requisite facts to invest the court with jurisdiction of the subject-matter and the parties, and that, hence, the ruling and judgment of the court were erroneous.
The judgment is reversed and the order sustaining the demurrer set aside, subject to the privilege of defendant to answer, within such time as the court below may •order.