LEWIS v. LEWIS
Lewis v. Lewis
LEWIS v. LEWIS
LEWIS v. LEWIS
No. 2774
March 3, 1928.
264 P. 981.
Brown & Belford, for Appellant:
Platt & Sanford, for Respondent:
OPINION
Per Curiam:
This suit was instituted by the respondent. From a j udgment • in his favor upon the ground of extreme cruelty and an order denying a motion for a new trial, the defendant has appealed. The parties will be referred to as they were designated in the trial court.
It is contended that the judgment and order should be reversed for two reasons: (1) Because the court had no jurisdiction to render the judgment it did; and (2) because of insufficiency of the evidence.
The first assignment of error is based upon the contention that the plaintiff had not been a resident for a period of not less than six months next preceding the commencement of the suit. Our statute reads:
"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: Provided, that, unless the cause of action shall have accrued within the county while plaintiff and defendant were actually domiciled therein, no court shall have jurisdiction- to grant a divorce unless either the plaintiff or defendant shall have been a resident of the state for a period of not less than six months next preceding the commencement of the action. The judgment or decree of divorce granted under the provisions of this act shall be a final decree." Stats. 1923, c. 214, p. 389, sec. 22.
It is conceded that the plaintiff had not been physically and corporeally present in the State of Nevada for the period of six months next preceding the commencement of the suit. It appears, however, that the plaintiff first came to Nevada in August, 1923, and remained in the state for something over six months, returning to New York City, where he accepted a position with one of the large concerns of that city. While he was there, the defendant brought suit against him for separate maintenance. Within a few days after that suit was instituted he left New York and returned to Nevada, and, within three weeks after his return to this state, instituted this proceeding.
The defendant is not and has never been a resident of Nevada, and the alleged cause of action did not accrue therein.
We will first consider the contention that the lower court was without jurisdiction to enter the decree awarding the plaintiff a divorce.
In determining this question we must .decide if the word "resident," as used in the section of the statute quoted, means that a plaintiff must be physically and corporeally present in the county in which the action was instituted for the six months' period, as contended by the defendant, or whether, as contended by the plaintiff, the fact that he had once established a residence by such presence, his absence for a time and return three wéeks prior to instituting the proceeding was sufficient to constitute him such a resident as is contemplated by the statute.
Our statute defines legal residence as follows:
"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; provided, however, should any person absent himself from the jurisdiction of his residence with the intention in good faith to return without delay and continue his residence, the time of such absence shall not be considered in determining the fact of such residence." Rev. Laws, 3609; Stats. 1911, p. 318.
This section seems clear enough, especially when we take into consideration the history of the legislation upon the subj ect and its purpose. It does not, by express terms, repeal, amend, or qualify section 3610 of the Revised Laws (Stats. 1889, p. 61), and what its full import is we need not determine. Both sections are incorporated in the revision of 1912, which was compiled by the then justices of this court. It is certain, however, that one purpose was to so enlarge the definition or scope of "residence" as to extend it to persons whose right to maintain or defend any suit at law or in equity depends upon his residence. So far as occurs to us at the moment, a nonresident may maintain an action in the courts of this state in any kind of action except in a divorce suit. Those of us who resided in the state at the time of the passage of the 1911 act (Rev. Laws, 3609 ) recall the reasons for its adoption. They need not be stated here, save to say that one purpose was to compel an actual, corporeal presence in the county for a period to six months prior to the institution of a divorce action (Presson v. Presson, 38 Nev. 203, 147 P. 3081) by those who came to the state to establish a residence for the purpose of instituting divorce proceedings. It was not aimed at those who were permanent residents of years standing.
Residence, as contemplated by our statutes, for the purpose of maintaining a divorce suit, was defined in Presson v. Presson, supra. Subsequent to the rendition of the opinion in that case the amendment of 1923 was adopted. That statute, like all statutes, must be construed and applied in the light of the purpose sought to be attained. State v. Brodigan, 37 Nev. 245, 141 P. 988; Escalle v. Mark, 43 Nev. 173, 183 P. 387, 5 A. L. R. 1512. Let us then inquire, what was the purpose of the amendment of 1923 ? For a full understanding of the situation let us briefly review the history of divorce legislation in this state. The divorce law of 1861, which provides for a six months' residence as a necessary prerequisite to jurisdiction, remained substantially unchanged and unexploited until an enterprising lawyer from New York, who, realizing its possibilities, became admitted to the bar of this state and capitalized its liberality. See In Re Schnitzer, 33 Nev. 581, 112 P. 848, 33 L. R. A. (N. S.) 941. The abuses which were thereafter practiced led to much outside criticism, and a great deal of discontent within the state, leading to subsequent amendments. The amendment of 1923 was the result of a movement which had as its object an amendment providing for the entry of an interlocutory decree, and a final decree six months thereafter, which was inaugurated by an initiative petition. There was much opposition to the amendment thus proposed, and when it was submitted to the legislature for its consideration, that body refused to pass it and submitted to the .voters a substitute measure, as pointed out in Tesoriere v. Second Judicial District Court, 50 Nev. 302, 258 P. 291, and it was in this proposed amendment, which was adopted, that the provision in question was incorporated. All of the recent legislation was aimed at those who had come or might come into the state with a view of establishing a residence for divorce purposes. This is a fact well known by all who kept reasonably informed on the current events of the day. This is also manifested from the proviso above quoted, which is the only change made in our divorce law as it existed at the time of its adoption. This is obvious from the language:
"Unless the cause of action shall have accrued within the county while plaintiff and defendant were actually domiciled therein."
The clear purpose of the amendment was to put an aggrieved party whose 'cause of action had arisen in the county in a different position from one who relied upon a cause of action which had arisen elsewhere, as to the necessity of corporeal presence for the six months next preceding the commencement of the action. In other words, it is the evident purpose of the language not to require an aggrieved party, whose cause of action arose in the state, to be corporeally present during the entire six months next preceding the commencement of the action, but to require it of one whose cause of action did not so arise. No other intelligent construction can be put upon this amendment. •
The word "residence" in the amendment in question must receive the construction which was given it by this court in Presson v. Presson, supra, which held that not only good faith but actual corporeal presence was necessary to the establishment of such a residence as would give a court jurisdiction to grant a divorce. We reach this conclusion both from a consideration of the purpose sought by the amendment and from the further fact that the word must be deemed to have been used in the amendment in the light of the construction placed upon the word in Presson v. Presson. In Gould v. Wise, 18 Nev. 253, 3 P. 30, it was held that when the words "carry on" had been construed by the federal court and the statute was thereafter reenacted, such construction must be presumed to have been accepted. In that case the court said:
"It has frequently been held that the reenactment of a statute without substantial alteration, after an authoritative construction has been placed upon it, is a legislative adoption of the construction. The cases in which the rule is announced are generally those in which the construction has been given by the highest court of the state; no case has fallen under our notice in which the construction was given to a statute of the state by the courts of the United States. The rule is based upon the presumption that the legislature knew of the construction."
Such is the well-recognizéd rule. 25 R. C. L. p. 1075, sec. 297; Ex Parte Nowak, 184 Cal. 701, 195 P. 402; Tobey v. Kip, 214 Mass. 477, 101 NE. 998.
Having reached the foregoing conclusion as to the question of jurisdiction, it is unnecessary to determine the question as to the sufficiency of the evidence.
It is ordered that the judgment and order appealed from be reversed and that the case be dismissed, at the cost of the plaintiff.