Carpenter v. Carpenter

• Decision Date: 01 July 1883
• Citation: 30 Kan. 712,2 P. 122
• Parties: ELIZA D. CARPENTER v. JOHN C. CARPENTER
• Court: Kansas Supreme Court

2 P. 122

30 Kan. 712

ELIZA D. CARPENTER v. JOHN C. CARPENTER

Supreme Court of Kansas

July 1, 1883

Error from Neosho District Court.

ACTION by John C. Carpenter against Eliza D. Carpenter, for a divorce. The opinion states the facts. Judgment for plaintiff at the April Term, 1883. The defendant brings the case to this court.

Judgment affirmed.

E Stillings, William C. Hook, and L. Stillwell, for plaintiff in error.

Lucien Baker, Hutchings & Denison, and Goodin & Keplinger for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by John C. Carpenter against Eliza D. Carpenter, his wife, in the district court of Neosho county, Kansas, to obtain a divorce on the ground of "extreme cruelty." The case was tried by the court without a jury, and the court found in favor of the plaintiff and against the defendant, and granted the divorce prayed for. The judgment was rendered April 16, 1883. To obtain a reversal of this judgment, the defendant, as plaintiff in error, now brings the case to this court. The first alleged ground for reversal is, that the district court had no jurisdiction of the subject-matter of the action; and this contention is predicated upon the provisions of §§ 54 and 640 of the civil code. The substance of these sections is, that the action for divorce is a local action, and can be brought only in the county of which the plaintiff is "a resident" or "an actual resident" at the time of filing the petition. The facts with reference to this subject, as found by the court below, are as follows:

"2. That plaintiff is a lawyer by profession; has heretofore, but not since the--day of March, 1878, been engaged in the practice thereof; that at or about that time he was appointed to and accepted the office of internal revenue collector of the United States for the district of Kansas; that at the time of such appointment he was practicing law, had his library, office, sleeping apartments, and washing done in Neosho county, Kansas; that he was the owner and in possession of both real and personal property located in the city of Chanute, in said county, which city was, at the time of his said appointment, within the geographical limits of Neosho county; that the plaintiff has ever since his said appointment voted in the county of Neosho, and at no other place; that he has claimed Neosho county as his residence for more than ten years last past, and now claims said county as his residence, and that he intended to return to said city of Chanute, in said county, where his professional library and office have for years last past been, just as soon as his official term of office should expire, and again resume the practice of the law; that the principal office to which plaintiff was appointed, and which he accepted in 1878, is kept and maintained in the city and county of Leavenworth, in said state, by order of the government of the United States; that the same has been kept and maintained in said city and county of Leavenworth by reason of such order; that the plaintiff in the discharge of his official duties has been compelled to spend his time chiefly in said city of Leavenworth; that at the time of the commencement of this action he was occupying private sleeping apartments in said city of Leavenworth, and when not engaged in official or other business at other places, he boarded at some public house in said city; that the internal revenue district of the United States for the state of Kansas for which the plaintiff was appointed collector, comprises the whole state of Kansas."

From the foregoing facts the court deduced the following conclusion of law:

"2. That plaintiff for more than one year next preceding the filing of his petition herein was, and now is, a resident of the county of Neosho, and the state of Kansas."

The court also found that for more than sixteen years last past the plaintiff has been an actual resident in good faith of the state of Kansas.

Said sections 54 and 640 read as follows:

"SEC. 54. An action for a divorce may be brought in the county of which the plaintiff is an actual resident at the time of filing the petition."

"SEC. 640. The plaintiff in an action for divorce must have been an actual resident, in good faith, of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed."

We think the foregoing facts, as found by the court below, are sustained by the evidence. There are also one or two other facts which we might state in this connection: About November 1, 1882, the plaintiff, Carpenter, rented a furnished house in the city of Leavenworth, and from November 9, 1882, up to December 29, 1882, he, with his wife, and one or more servants, resided in such house and kept house. But his law library, with some other property, has all the time remained at Chanute.

The plaintiff in error, defendant below, first made her objection to the jurisdiction of the trial court by inserting such objection in her answer to the plaintiff's petition, which she filed in answer to the merits of the action. For this reason, the defendant in error, plaintiff below, claims that the defendant below waived all objection to the jurisdiction of the court, and cites Meixell v. Kirkpatrick, 29 Kan. 679, 683, and cases there cited. The defendant in error claims that the objection to the jurisdiction should have been made, if made at all, before any general appearance in the case was made, and before answering to the merits. On the other hand, the plaintiff in error, defendant below, claims that an objection to the jurisdiction of the court may be made at any time. (Civil Code, $ 91.)

Assuming that the plaintiff in error is correct upon this proposition, but not intending to express any opinion thereon, we must say that we think that the decision of the court below upon the question of jurisdiction was, nevertheless, correct. Mr. Carpenter's permanent and actual residence was in Neosho county, while his temporary and transient residence was in Leavenworth county. He was simply a sojourner in the city of Leavenworth during the continuance of his term of office; and he never intended or expected to make that place his permanent home, but always intended and expected to return to Chanute, in Neosho county, when his term of office expired; and always intended and expected to continue to make that place his permanent home, his permanent abiding-place; and his wife, the defendant below, understood this as well as he did, for in her letter to him, written January 11, 1883, after their separation, she says:

"My position in P [Pittsburgh, Pa.] as the daughter of C. H. Armstrong, in a large city, and among my old friends, was better than on a salary, in a government office, in a small town, and the possibility of losing it at any time and settling in Chanute. . . . I should have been just as happy in two rooms in Chanute as in forty rooms in Topeka, if you had been kind and affectionate towards me, and showed me you liked to be with me."

Carpenter obtained an absolute residence at Chanute. He left it temporarily to take possession of a federal office, the duties of which required his presence in Leavenworth. He boarded for a time in Leavenworth county. He married a wife who had never resided in any part of the state of Kansas. They then boarded for a time in Leavenworth, but afterward rented a furnished house and kept house for about seven weeks in Leavenworth; but Carpenter at all times considered Neosho county as his permanent home and abiding-place. Now we think that this permanent and absolute home of Carpenter in Neosho county, and not his temporary and official home in Leavenworth county, was his residence, or actual residence, within the meaning of the divorce statutes. (See Bishop on Marriage and Divorce, §§ 210 to 214; Wharton on the Conflict of Laws, §§ 50 to 56, and authorities cited in the brief of counsel for defendant in error, as follows: Hinds v. Hinds, 1 Iowa 36; Hayes v. Hayes, 74 Ill. 312; Hanson v. Hanson, 111 Mass. 158; Culbertson v. Floyd, 52 Ind. 361; Kennedy v. Ryall, 67 N.Y. 379 at 379-386; W. Iron Works v. Toy, 12 Law An. 200.)

The words "resident" and "actual resident," as used in the divorce statutes, we think contemplate a residence and actual residence with substantially the same attributes as are intended when the word "domicile" is used. And we do not think that it makes any difference that the word "residence" sometimes or in some other statute, may mean something else. It may be that for the purpose of serving a summons, the words "usual place of residence" should be held to mean the place where the defendant is in fact residing for the time being; though, contra, see Love v. Cherry, 24 Iowa 204. But we do not think that the words "resident" or "actual resident," as used in the divorce statutes, can have in contemplation any such kind of residence. In the divorce statutes, we think these words have in contemplation a residence of a more permanent and fixed character.

But counsel for plaintiff in error desire to make a distinction between official homes where the offices with which they are connected have a fixed and definite term, and official homes where the offices with which they are connected are held simply during the pleasure of the appointing power, as the office of collector of internal revenue is. But we do not see any good reason for making any such distinction, and the great weight of authority we think is against any such distinction. But if any distinction is to be made, should it not be made in favor of the plaintiff below, and not against him? We would think that a person who is liable to be...