Opinion
No. 3134
April 3, 1936.
APPEAL from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
William S. Boyle, for Appellant:
Samuel R. Tippett, L.D. Summerfield, and Harlan L. Heward, for Respondent:
Section 5838 of the Revised Laws of Nevada 1912 is almost the same as sec. 9460 N.C.L. They both read: "or in which the plaintiff shall reside." The word "any" in the first part of the statute stands out likewise. The word "any," according to the Century Dictionary, p. 253, vol. 1, is an adjective and pronoun. In this instance it is an adjective. The dictionary states: "derivative of one or rather of its weakened form `an,' `a' in an indeterminate unitary or, in plural, partitive use." Words and Phrases, vol. 1 (1st), p. 420, declares that a statute providing that an action may be brought "in any court of the United States" means any court of the United States within the territorial jurisdiction of which a defendant may be an inhabitant. U.S. v. Crawford, 47 Fed. 561. We can construe "inhabitant" as meaning one "domiciled."
Appellant relies particularly upon the following authorities: Fleming v. Fleming, 36 Nev. 135, 134 P. 445; Aspinwall v. Aspinwall, 40 Nev. 55, 184 P. 810; Barber v. Barber, 47 Nev. 377, 385, 222 P. 284; 9 R.C.L., p. 417, sec. 217.
In this instance the residence is alleged to be in Washoe County all of the time for which it is claimed. The complaint is filed in Ormsby County, when it should have been filed in Washoe County, the domicile of the plaintiff. Therefore the court of Ormsby County has no jurisdiction and the judgment appealed from should be reversed.
By the amendment to the statute in 1931 (Stats. 1931, p. 161), it seems too plain for argument that the legislature ex industria changed the statute to provide that upon a six weeks' residence in the state a plaintiff may file an action for divorce in any county in the state. It is difficult to see how it could have more clearly expressed this intention. Instead of confining the residence to one county, it is provided that a person may establish it for varying periods in the different counties, establishing a state rather than a county residence. Consequently, the residence being a state residence, the plaintiff is expressly authorized to file his action in any county in the state.
There is nothing in the constitution of the State of Nevada, or any rule of public policy that we know of, which would render invalid such a construction of the 1931 statute.
It has been repeatedly held in Nevada that divorce is a creature of statute and governed and controlled in substance and procedure by the legislative enactments relating thereto. Worthington v. District Court, 37 Nev. 214, 142 P. 230; Ann. Cas. 1916E, 1097; L.R.A. 1916A, 696; Effinger v. Effinger, 48 Nev. 209, 239 P. 801.
The general rule on jurisdiction is not predicated on a county residence, but, to the contrary, upon a state residence. 19 C.J. 27; 9 R.C.L. 400.
So, too, the general rule is that venue in divorce actions is subject to the statutory provisions on the subject. 19 C.J. 34.
We suggest that the construction followed by the district court in this case is the same construction which said court and other district courts have placed upon the statute in question for at least four and a half years, and that a contrary construction would entail the grave consequences pointed out in the case of Davis v. Davis, 54 Nev. 267, 13 P.2d 1109.
OPINION
Plaintiff brought this action for divorce in the First judicial district court of the state in and for the county of Ormsby. He alleged in his complaint: "That the plaintiff is now and for a period of more than six weeks preceding the commencement of this action has been a bona fide resident of the County of Washoe, State of Nevada, and has been for said period of time actually, physically and corporeally present in said county and state."
On this account a special demurrer was interposed, challenging the jurisdiction of the court. The demurrer was overruled. Defendant failed to answer within the time given by the court. Her default was entered and a decree of divorce granted to plaintiff.
1. It is contended that the trial court had no jurisdiction of the action because, as the complaint shows, plaintiff was not a resident of said Ormsby County, but, on the contrary, was a resident of said Washoe County, in the Second judicial district, when the action was instituted.
The pertinent part of the statute involved reads: "Divorce from the bonds of matrimony may be obtained by complaint, under oath, to the district court of any 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, or in which the parties last cohabited, or if plaintiff shall have resided six weeks in the state before suit be brought. * * * 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 resident of the state for a period of not less than six weeks preceding the commencement of the action." Stats. 1931, c. 97, p. 161.
The foregoing statute amended the law found in section 9460 N.C.L., which then read: "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 three months before suit be brought."
The amendment reduced the required time of residence of a plaintiff from three months to six weeks, and its language manifests a like liberal intention as to plaintiff's place of residence. It clearly means that a residence of six weeks in the state by a plaintiff will give the district court of any county jurisdiction to entertain an action by such plaintiff for divorce. Omitting intervening language, the statute reads: "Divorce from the bonds of matrimony may be obtained by complaint, under oath, to the district court of any county * * * if plaintiff shall have resided six weeks in the state before suit be brought."
This language is capable only of the meaning we have ascribed to it. The legislature is presumed to mean what it has thus plainly expressed.
In the statute, as is seen, appears the clause, "or in which the plaintiff shall reside"; and from this appellant argues that residence in the county at the time a person files a complaint for divorce is required, together with a state residence of six weeks to give the district court of such county jurisdiction. The contention has some force, but not sufficient, we think, to overcome the other clear and explicit language of the statute which shows that a departure from a county residence to a state residence has been accomplished.
The substitution in the amendment of the word "any" for the word "the" effecting a change from "the district court of the county" to "the district court of any county," is highly significant.
Since territorial days to 1931 the former wording has been in the divorce statute. The first statute enacted in 1861 (chapter 33) in this respect read: "Sec. 22. Divorce from the bonds of matrimony, may be obtained by complaint, under oath, to the probate court," etc. Subsequently a change was made from probate court to district court.
Numerous amendments have been made during the passage of years, but as to the above language, no other change was made until, as previously stated, in 1931, when the word "any" was substituted for the word "the." The reason is obvious. If the word "the" had been retained the phrase "the district court of the county" in connection with the last residence clause, "if plaintiff shall have resided six weeks in the state" would have made an ambiguity as to what county was meant. The substitution of the word "any" makes it clear that any county was meant. This is in keeping with the steady liberal tendency of the legislature in this regard.
Appellant does not contend that it is beyond the power of the legislature to make state residence the basis of jurisdiction in any district court in an action for divorce.
We would be loathe to hold that appellant's contention is controlling because of the train of consequences mentioned in Davis v. Davis, 54 Nev. 267-273, 13 P.2d 1109, which might follow.
2. The statute is not doubtful, but if it were it would be our duty to adopt that construction which would be the least likely to produce mischief. Smith v. Southern Pacific Co., 50 Nev. 377, 381, 262 P. 935.
3. Counsel for appellant deplores a situation which, he asserts, will enable a plaintiff to select a judge to his liking, and a county in which the filing fee is low. This argument goes to the wisdom or policy of legislative action, with which we have no concern. Moreover, practically the same situation which counsel deprecates could follow if his contention of a county residence were allowed. This because no particular length of time for a plaintiff's residence in a county having been specified, any period of a bona fide residence, however short, would satisfy the statute.
The decree should be affirmed.
It is so ordered.