Fleming v. Fleming

• Decision Date: 09 July 1913
• Docket Number: 2,021.
• Citation: 134 P. 445,36 Nev. 135
• Parties: FLEMING v. FLEMING.
• Court: Nevada Supreme Court

134 P. 445

36 Nev. 135

FLEMING v. FLEMING.

No. 2,021.

Supreme Court of Nevada

July 9, 1913

Appeal from District Court, Washoe County; John S. Orr, Judge.

Action by R. M. Fleming against Mary C. Fleming. From an adverse order, plaintiff appeals. Affirmed.

C. R Reeves, of Reno, for appellant.

McCARRAN J.

This is an appeal from an order made and entered by the judge of the Second judicial district in and for Washoe county denying plaintiff an order for publication of summons.

On the 15th day of January, 1912, appellant, R. M. Fleming, filed with the clerk of the district court a complaint, by reason of which complaint prayed for a decree of divorce from Mary C. Fleming, his wife. On the 17th day of January, 1912 appellant filed an affidavit in the same court and cause in support of his application for an order directing that service be had upon the defendant, who was a nonresident, by the publication of the summons under the provisions of the statute.

The judge, in refusing the order for publication, took into consideration the complaint on file and affidavit of plaintiff, but stated in substance that from both of these instruments it appeared that there were not sufficient facts to give the court jurisdiction of the subject-matter of the action. It appears from the complaint on file in this case that the defendant Mary C. Fleming, wife of appellant herein is a resident of the city of New York. It further appears from the complaint that plaintiff arrived in the city of Reno on the morning of July 11, 1911, and on the following day engaged rooms at 445 South Virginia street, in that city. Section 5838 of the Revised Laws provides: "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. * * *" The Legislature of Nevada in 1911 passed an act entitled, "An act defining what shall constitute legal residence in the state of Nevada." (Laws 1911, c. 158). The statute as approved is 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."

For the purpose of securing an order for the publication of the summons in this case, the plaintiff made an affidavit, in which affidavit he set forth the averments of his complaint relative to his residence within Washoe county. The averment is as follows: "* * * The plaintiff arrived at Reno at 4 o'clock a. m. July 11, 1911, and registered at the Riverside Hotel on said 11th day of July, 1911, and that upon the 12th day of July, 1911, plaintiff engaged and secured rooms, and took up his residence at 445 South Virginia street, with Mr. and Mrs. F. M. Schadler, and entered said rooms and remained and occupied and slept in said rooms each and every night from the 12th day of July, 1911, until the 12th day of August, 1911; that prior to the 12th day of August, 1911, the plaintiff was employed by Capt. Strover, superintendent of survey, of the office of the Surveyor General of the state of Nevada, to go to work for the United States goverment with a United States surveying party; that upon the 12th day of August, 1911, plaintiff left Reno with said surveying party, and went to Churchill county, and lived in the field in tent and in the open without shelter, moving camp from township to township as surveyed, from August 12, 1911, to November 14, 1911, when said survey party of the United States in which and by which plaintiff was employed was ordered to return to Reno, and on the 14th day of November, 1911, plaintiff arrived in Reno from said surveying party; that during all this time plaintiff's post office address was Reno, Nevada, all mail arriving being forwarded to the field through the Surveyor General's office, all personal belongings that plaintiff has, except field clothing, was continuously in said rooms at 445 South Virginia street, and at all times said 445 South Virginia street was his home and since the said 14th day of November, 1911, he has resided and occupied continuously in person his said home; and that it is plaintiff's intention to continue an actual bona fide resident of Reno in the future; that he has taken up his residence in Reno with the intention to make the state of Nevada and Reno his permanent residence, and that the same is his permanent home." Under the provisions of the statute quoted above (section 5838, R. L.), a residence for a period of six months within the county was made a prerequisite for the commencement of an action for divorce from the bonds of matrimony. The act of 1911, aside from the proviso, neither limited nor enlarged upon the original provision of the statute as quoted above. If it did anything it emphasized the original statute (section 5838, R. L.) by declaring that the legal residence of a person who sought to maintain or defend any suit at law or in equity should be considered that place in which he or she had been actually, physically, and corporeally present within the state or county; hence by the provisions of this statute actual residence, as distinguished from domicile or legal residence, was made the basis upon which courts would determine the status of the party litigant and acquire jurisdiction. In this respect residence must be distinguished from domicile. One may have his domicile in one state, and yet be a resident of another.

It is the contention of the appellant that the word ...