Summary
In Latterner v. Latterner, 51 Nev. 285, 274 P. 194, defendant appeared and filed an answer denying the allegation in the complaint that plaintiff had resided in the county where the suit was filed for more than three months immediately preceding the commencement of the action.
Summary of this case from Atkins v. AtkinsOpinion
No. 2836
February 5, 1929.
APPEAL from First Judicial District Court, Douglas County; G.A. Ballard, Judge.
Grover L. Krick, for Appellant:
Wayne T. Wilson, for Respondent:
In order to give the First judicial district court of Nevada, in and for Douglas County, jurisdiction of the action, respondent's residence in Douglas County must be bona fide and not transient. His own testimony and actions show that respondent did not consider Douglas County his domicile or bona fide residence, and appellant maintains that his residence in Douglas County was not bona fide and that his domicile and residence was not in Douglas County, Nevada. To bring this action within the jurisdiction of the district court of Douglas County, respondent's residence in the county of Douglas must be substantial and permanent. Fleming v. Fleming, 36 Nev. 140; Presson v. Presson, 38 Nev. 207; Dedrick v. Dedrick, 257 P. 837; Pope v. Pope, 243 P. 962; Anthony v. Tarpley, 187 P. 779; Walker v. Walker, 45 Nev. 108; Aspinwall v. Aspinwall, 40 Nev. 64; Barber v. Barber, 47 Nev. 377, 39 A.L.R. 706, and note 711 et seq.; Beach v. Beach, 46 P. 514; 9 R.C.L. 403, sec. 200, p. 542; Holmes v. Holmes, 8 A.L.R. 1540.
The trial court in its decision on the motion for a new trial in this case did not find that respondent's residence was in good faith, but only that he had been actually present in Douglas County for three months immediately before the action was begun.
A jurisdictional question is never waived. Sec. 5045, Rev. Laws of Nevada, 1912. It is a well-settled principle of law that the question of jurisdiction can be raised at any time during the trial, and if not at that time it can be raised for the first time on appeal, when the want of jurisdiction appears affirmatively from the record. Aram v. Edwards (Idaho), 74 P. 961; Oppenheimer v. Regan (Mont.), 79 P. 695; Empire Ranch Cattle Co. v. Millet, 135 P. 127; First Nat. Bank of Pateau v. School Dist. No. 4 of Hughes Co. (Okla.), 160 P. 68; Stephens v. Weyl-Zuckerman Co. (Cal.), 167 P. 171; Maguire v. Cunningham (Cal.), 222 P. 838; Dant Russell v. Pierce (Ore.), 255 P. 603; Gamble v. Silver Peak, 35 Nev. 319, 133 P. 936.
Jurisdiction of subject matter of character incapable of being waived must be considered when raised for first time on appeal. Bosher v. Bellas (Ariz.), 264 P. 468; Twin Falls Realty Co. v. Brune (Ida.), 264 P. 382; Boarman v. Home State Bank of Tecumseh (Okla.), 239 P. 579; Labbitt v. Bunston (Mont.), 260 P. 727.
This state has prescribed by statutory enactment, the prerequisites by which the courts may or shall acquire jurisdiction of divorce cases. Stats. 1926-27, p. 126. If jurisdiction is acquired in the manner prescribed by statute it cannot be questioned within the state. 15 C.J., p. 797, sec. 92; Campbell v. Wilson, 6 Tex. 379[ 6 Tex. 379][ 6 Tex. 379]. "Jurisdiction depends on the statute." Thompson v. Thompson, 49 Nev. 383.
The bona fides of plaintiff's residence in Douglas County, Nevada, is a question of fact to be determined by the jury, or court, and there being substantial evidence to support the verdict or decree, this court is bound thereby. Thompson v. Thompson, supra, p. 384.
If the respondent came to the State of Nevada and the county of Douglas with the intention of abandoning his home in California, and with a bona fide intention of remaining in Douglas County, Nevada, for an indefinite length of time, and did remain, physically, in Douglas County three full calendar months, he acquired a residence and domicile sufficient to give the court jurisdiction of the divorce case which was filed in that county by him. Presson v. Presson, 38 Nev. 203.
"The decisions do not hold that this residence must be for any particular length of time, unless required by legislative enactment." Tiedemann v. Tiedemann, 36 Nev. 503.
The trial court having found by implication that the plaintiff below, respondent here, was a bona fide resident of Douglas County, Nevada, this court is bound by that finding. Thompson v. Thompson, 49 Nev. 384; Confer v. District Court, 49 Nev. 31. The finding of the court in favor of plaintiff imports that the plaintiff's residence was in good faith, and if supported by substantial evidence cannot be disturbed on appeal. Walker v. Walker, 45 Nev. 109; Miller v. Miller, 37 Nev. 257; Gildersleeve v. Gildersleeve (Conn.), Ann. Cas. 1916B, 920.
Jurisdiction of a divorce action is determined by plaintiff's residence at the time of filing the petition, and it is immaterial where he afterwards establishes his residence. Duxstad v. Duxstad, 100 P. 112; Whise v. Whise, 36 Nev. 23; Confer v. District Court, 49 Nev. 33; 19 C.J., p. 28, sec. 39. A change of residence by plaintiff after the commencement of the suit and before its trial does not deprive the court of jurisdiction. 19 C.J. 28, sec. 39.
The defendant voluntarily appeared in this case and presented, or had the opportunity to present, her claim to the court, and is therefore estopped to deny the jurisdiction of the court over the subject matter of the suit. 4 C.J. 1350, sec. 40, and cases cited under notes 24 and 25; Curtis v. McCullough, 3 Nev. 210. Where the court has jurisdiction of the subject matter, a general or voluntary appearance by the defendant confers jurisdiction of the person, and estopped the defendant to object to the jurisdiction of the court. 4 C.J. 1350, sec. 41; Golden v. Fifth Judicial Dist., 31 Nev. 250-259; Frankel Co. v. Creditors, 20 Nev. 49.
OPINION
This is an action for divorce. Respondent, who was plaintiff in the court below, obtained a decree of divorce. In his amended complaint appears the following allegation:
"That plaintiff resides in and for more than three months immediately preceding the commencement of this action has resided continuously in the county of Douglas, State of Nevada, since the 19th day of July, 1927."
This allegation was denied in the answer. Appellant contends that the evidence did not establish the bona fides of respondent's residence in Douglas County for the period of three months prior to the commencement of the action. This is the only question she presents.
We are of the opinion that the trial court misapplied the law to the facts bearing upon this issue. This appears from the following statement of the trial court found in the bill of exceptions:
"The court did not find that plaintiff's residence was in good faith, but only that he had been actually and corporeally present in Douglas County for three months immediately before the action was begun. Is more required? If it is, the plaintiff should not have his decree."
The plaintiff, however, was given a decree, and as the bona fides of his residence was a material issue, which the court did not pass upon, the resulting prejudice to appellant from this omission is apparent.
Section 5838 of the Revised Laws was amended by the legislature of 1927 (Stats. 1927, c. 96), and the part involved reads:
"Divorce from the bonds of matrimony may be obtained, by complainant, 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 three months before suit be brought. * * *"
1-3. The foregoing provision, prior to the amendment at that session of the legislature, provided that a suit for divorce could be brought in the county in which plaintiff had resided for six months before the commencement of the action. The only change wrought by the amendment in the phraseology of the part of the section quoted was in making the time of residence three months, where it had formerly been six. Prior to the amendment the six months' residence clause had been definitely construed by this court. The residence required was determined to be of a character denoting a present intention on the part of the one claiming it to make the county in which the suit was instituted the person's home, at least for an indefinite period. It was held, also, that the residence meant by said section 5838, and by the Session Acts of 1911, c. 158, was one characterized by the physical presence of the person, as well as by his or her intent to make the place a home. Fleming v. Fleming, 36 Nev. 135, 134 P. 445; Presson v. Presson, 38 Nev. 203, 147 P. 1081; Walker v. Walker, 45 Nev. 105, 198 P. 433.
The legislature must be presumed to have been cognizant of these constructions. In the absence of any language in the amendment indicating a contrary intention, it must also be presumed that the word "resided" was used by the legislature with the meaning ascribed to it by the court. If the legislature uses words which have received a judicial interpretation, they are presumed to be used in that sense, unless the contrary intent can be gathered from the statute. 2 Lewis' Sutherland, Statutory Construction (2d ed.), 758, 759.
4. There is nothing in the language of the amendment denoting an intention to make mere physical corporeal presence in the county the sole element of the residence required of a plaintiff in a divorce action. The same language formerly used in the provision amended was employed, except in designating the number of months required. What motive the legislature may have had in shortening the time of residence has no bearing on the meaning of the words used. Where the language of a statute is susceptible of a sensible interpretation, it is not to be controlled by any extraneous considerations.
5, 7. The trial court should have considered the evidence bearing upon the good faith of respondent's residence. The supreme court cannot pass upon the question in the first instance. When a court applies a wrong principle of law to the prejudice of a party, the judgment must be reversed. Long Valley Land Development Co. v. Hunt, 51 Nev. 5, 266 P. 917. Furthermore, the court, having failed to find plaintiff to be a bona fide resident, was without jurisdiction to grant him a decree of divorce.
The judgment is reversed.
ON PETITION FOR REHEARING
May 16, 1929.
Rehearing denied.