Summary
In Lehman, supra, p 105, the Supreme Court set out the pertinent portion of the then-existing county residence requirement with which it was concerned.
Summary of this case from Stamadianos v. StamadianosOpinion
Docket No. 56, Calendar No. 43,039.
Decided June 29, 1945.
Appeal from Chippewa; Runnels (Herbert W.), J. Submitted June 8, 1945. (Docket No. 56, Calendar No. 43,039.) Decided June 29, 1945.
Bill by Gustave A. Lehman, Jr., against Marie Louise Lehman for a divorce on ground of extreme and repeated cruelty. Cross bill by defendant against plaintiff for divorce on ground of extreme and repeated cruelty. Decree for plaintiff. Defendant appeals. Reversed and bill and cross bill dismissed.
F. Ray Gillespie ( Hubbard McCullough, of counsel), for plaintiff.
Adams Fenlon ( Buckingham, Piggins Rehn, of counsel), for defendant.
These parties were married in Wayne county in September, 1941. He was employed as a maintenance man and she as a waitress in a Detroit hotel. A son was born to them in July, 1942, and they separated in March, 1943.
In September, 1943, plaintiff filed bill of complaint in Chippewa county, where his parents resided. He charged defendant with extreme and repeated cruelty and asked for an absolute divorce and custody of their infant son. Defendant filed answer and cross bill, denying the charges against her and alleging that plaintiff was guilty of extreme and repeated cruelty. She asked for a divorce and custody of the child. The case was tried, and on May 5, 1944, the court entered a decree granting plaintiff a divorce and awarding custody of the child to his parents. Defendant appeals, and, this being a chancery case, we review de novo.
The only question requiring determination is whether or not the trial court had jurisdiction to grant the divorce decree in question. Plaintiff alleged, and the record shows, that he had resided in this State for one year immediately preceding the filing of his bill, as required by 3 Comp. Laws 1929, § 12731, as amended by Act No. 2, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 12731, Stat. Ann. 1944 Cum. Supp. § 25.89).
However, there was no proof that either party was a resident of Chippewa county, as required by 3 Comp. Laws 1929, § 12728 (Stat. Ann. § 25.86), which provides in part:
"A divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties or one of them, reside."
Following their marriage the parties had established and maintained a home in Detroit, and after their separation each of them continued to reside in Detroit. Defendant said she intended to make her home there with her brother. Plaintiff admitted that he returned to Chippewa county "merely for this suit." He testified:
"I was working as a maintenance engineer at the Fort Shelby (hotel in Detroit). * * *
"Q. You came up here merely for this suit? "A. Yes, sir. "Q. And you expect to go back there (Detroit) to work?
"A. Yes, sir. * * *
"After that (September 1, 1943) I came up north and visited my parents * * * and my sister in the Sault for some time and when I went back to Detroit I went to work * * * at the Fort Shelby where I am still employed."
We note that plaintiff began the present suit in September, 1943, during the time he was visiting his parents and sister in Chippewa county. The question of jurisdiction was not raised in the trial court, but it is raised and should be determined on this appeal. In re Estate of Fraser, 288 Mich. 392, we said:
"Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any stage of the proceeding."
"The question of jurisdiction may be properly presented to and passed upon by a court at any stage of pending proceedings." In re Cody's Estate, 293 Mich. 697.
See, also, Kerwin v. Rettie, 294 Mich. 308; Township of Warren v. Raymond, 291 Mich. 426; Warner v. Noble, 286 Mich. 654.
The record clearly establishes that neither party was a resident of Chippewa county at the time the present suit was begun or when the decree was entered. Wright v. Genesee Circuit Judge, 117 Mich. 244; Reed v. Reed, 52 Mich. 117 (50 Am. Rep. 247). Therefore, under section 12728 quoted above, the circuit court of that county was without jurisdiction to grant the decree in question. The jurisdiction of the court was statutory ( Winter v. Winter, 276 Mich. 665; Herp v. Herp, 254 Mich. 33; Haines v. Haines, 35 Mich. 138), and jurisdiction could not be conferred by consent of the parties. Mondou v. Lincoln Mutual Casualty Co., 283 Mich. 353; Nichols v. Houghton Circuit Judge, 185 Mich. 654 (Ann. Cas. 1917 D, 100). Failure to allege residence in the county could be cured by amendment, but the fact of residence must be proved. In the case of People v. McCaffrey, 75 Mich. 115, 125, 126, we said:
"Failure to allege his residence within that particular county was not a jurisdictional defect. * * *
"The omission to allege it may be cured by amendment, though this fact (of residence) must be made to appear in the proofs in order to give relief."
In 3 Searl, Michigan Pleading Practice, p. 333, § 1334, it is stated:
"Bills for divorce must be filed in the county where one of the parties resides."
See, also, Titus v. Chippewa Circuit Judge, 168 Mich. 507.
In view of our conclusion that the trial court was without jurisdiction to grant the decree in question, it is unnecessary to discuss the testimony relative to the respective allegations of cruelty.
The decree entered by the trial court is reversed and set aside. For the reasons herein stated, a decree may be entered in this court dismissing plaintiff's bill of complaint and defendant's cross bill. Defendant may recover costs of this court.
NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.