Gibbs v. Gibbs

Citation73 P. 641,26 Utah 382
Decision Date15 August 1903
Docket Number1383
CourtSupreme Court of Utah
PartiesMONETTA D. GIBBS, Appellant, v. J. F. GIBBS, Respondent. [1]

Appeal from the Fifth District Court, Millard County.--Hon. Thomas Marioneaux, Judge.

Action of divorce, instituted in Millard county, on the ground of the alleged adultery of the defendant charged in the complaint as having been committed in Piute county. From a judgment dismissing the action, the plaintiff appealed.

REVERSED.

J. W N. Whitecotton, Esq., and Samuel R. Thurman, Esq., for appellant.

Messrs Warner, Houtz, Prentiss & Warner for respondent.

BASKIN C. J. McCARTY, J., concurring. BARTCH, J., concurring in part and dissenting in part.

OPINION

BASKIN, C. J.

--This is an action of divorce, and was instituted in Millard county. The ground upon which the divorce is sought is the alleged adultery of the defendant, charged in the complaint as having been committed in Piute county. The defendant admitted in his answer that he and the plaintiff are husband and wife, and that the latter now is, and for more than one year last past has been, a bona fide resident of Millard county, but denied that he had committed the adultery alleged in the complaint, "or with any person or persons or at all." No objection was made to the venue of said action in the answer or otherwise. After the respective parties had introduced their evidence, the case was submitted, and the same taken under advisement. Afterwards the court, in a lengthy opinion, held that "the cause of action, under section 5, article 8, of the Constitution, in which it is provided that 'all civil and criminal business arising in any county, must be tried in such county, unless a change of venue be taken, in such cases as may be provided by law,' arose out of Millard county and in Piute county, if anywhere," and that the venue was improperly laid in Millard county, and thereupon dismissed the action.

In this, as in most of the other States, the action for divorce is statutory, and a decree is not obtainable except for the causes and in the manner prescribed by the statute. Section 1208, Revised Statutes, 1898, provides: "Proceedings in divorce shall be commenced and conducted in the manner provided by law for proceedings in civil cases, except as hereinafter provided, and the court may decree a dissolution of the marriage contract between the plaintiff and defendant in all cases wherein the plaintiff, for one year next prior to the commencement of the proceedings shall have been an actual and bona fide resident of the county within the jurisdiction of the court, for any one of the following causes, to-wit." Among the causes thereinafter mentioned is adultery. The provision relating to the residence of plaintiff is mandatory. The plaintiff was precluded thereby from suing for and obtaining a divorce in the county in which the alleged adultery was committed. If, therefore, the construction given to section 5, article 8, of the Constitution, by the court below, is sustained, plaintiff has no remedy whatever. As the subject of divorce is a matter of statutory regulation, it is competent for the Legislature, in granting the right to impose such limitations and conditions as in its wisdom it may deem proper, and generally, in this country, for the purpose of preventing collusive and fraudulent divorces, the statutes granting the right have, as our statute has done, required the bona fide residence of the plaintiff for a fixed period in the jurisdiction in which the action for divorce is instituted. In view of the prevalence of cases in which persons have become temporary residents in States under whose laws divorces could be readily obtained, for no other purposes than to obtain divorces, such restrictions are salutary, and have been universally sustained by the courts. The conditions upon which the Legislature in this State has granted the right of divorce are valid and binding upon the courts in the absence of a clear and explicit restriction of that right in the Constitution. The Constitution does not define what constitutes a cause of action, nor does it contain any provision from which it can be ascertained where either a local or transitory cause of action arises. Therefore resort must be had to the practice which prevails at common law or in equity. In special statutory causes of action and in criminal causes of action the place where the cause of action arises can generally be determined from the respective terms of the statute. As the defendant appeared in the suit, and filed an answer, and submitted his defense on the merits, the action is in personam. When the defendant is a non-resident, and is not personally served with summons, and does not enter an appearance, then the proceeding of divorce is in rem, and only the marriage relation can be dissolved by decree; but when he appears and joins issue by answer the nature of the proceeding is changed to that of a proceeding in personam, and both the dissolution of the status of marriage and a personal judgment for alimony may be decreed. 1 Nelson on Divorce, sec. 5, pp. 13, 14; 2 Bish., Mar. and Div., sec. 25 et seq., and sec. 81.

In the case at bar the evidence is not in the record, but the defendant is charged with having committed the wrong complained of in Piute county. Suppose that at the time of the alleged adultery the plaintiff had not been, nor has since become, a bona fide resident in any county of the State for the period required by the statute, would either a cause of action or a right of action have accrued in her favor? Certainly not, for the residence of the plaintiff for the statutory period is a traversable fact, which the plaintiff, to recover, must prove. It follows, therefore, that the alleged adultery was not the sole element of plaintiff's cause of action, and that a cause of action for divorce, under the statute, can only arise within the county in which the action is brought, and in which the plaintiff has been a bona fide resident for one year prior to the institution of the suit. The term "all civil and criminal business," as used in section 5, article 8, of the Constitution, does not change the common-law practice in respect to venue in either civil or criminal actions, but is simply an announcement of the common law upon that subject. This court held, in the cases of White v. Rio Grande Wes. Ry. Co., 25 Utah 346, 71 P. 593; Konold v. Rio Grande Wes. Ry. Co., 16 Utah 151, 51 P. 256; Deseret Irr. Co. v. McIntyre, 16 Utah 398, 52 P. 628; Mosby v. Gisborn, 17 Utah 257, 54 P. 121; and Condon v. Leipsiger, 17 Utah 498, 55 P. 82--that the word "business" was used in section 5, article 8, Constitution, in the sense of causes of action. That that term was used only in that sense is evident from the fact that contested causes of action, and not business transacted by courts or individuals, are alone issuable, and the subject of trials in the civil courts. "A trial is the examination before a competent tribunal of the facts or law put in issue in a cause for the purpose of determining such issue." 21 Am. and Eng. Ency. Pl. and Pr., p. 956. Also Bouvier's, Anderson's, Black's, and Rapalje's Law Dictionaries. It follows that the term "business," when viewed in connection with the context of the clause of the Constitution in question, can not be rationally construed to apply to any case which does not involve a trial, and is not subject to a change of venue. A matter pending before a court in which there are no contesting parties does not involve a trial in any sense of that word, and a change of venue in such a matter would indeed be a novelty. A trial itself, as also matters not involving a trial, acted upon by a court, in one sense, is court business. From necessity the term "business" can only apply to contested causes of action which alone are issuable and subject to trial. That it was used by the framers of the Constitution only in the sense of "causes of action," and that the proper venue in both civil and criminal actions, as at common law, is the place where the cause of action arises or the crime is committed, to me seems clear.

Again there is no doubt but that under section 7, article 8, Constitution, which vests the district courts of the state with original jurisdiction, the district court in Millard county has jurisdiction of the subject-matter of this action. Therefore, as it is an action in personam , and as the defendant appeared, answered, and submitted his defense upon the merits, he waived all objections to the venue, and the court thereby acquired jurisdiction of his person, and had authority to, and should have, rendered a decree upon the merits. Even in a criminal case the defendant may waive his constitutional right to a trial in the county or district where the crime is alleged to have been committed. Bishop, in his work on Criminal Procedure (volume 1, sec. 50), after referring to the fact that some of the State Constitutions contain direct provisions that the trial shall be in the county, or in the county or district, where the offense was committed, says: "Still this sort of provision, being for the benefit of defendant, may be waived, as, if one applies to the court for a change of venue, he waives his right to be tried in the county where indicted." So, in this State, the clause of the Constitution in question being for the benefit of defendants, the right of the defendant to a trial in the county where the cause of action has arisen is waived in a civil action when the court has jurisdiction of the subject-matter of the suit, and the defendant appears and answers, without objecting to the venue. 22 Ency. Pl. and Pr., 815, 816; White v. Rio Grande Wes. Ry. Co., 25 Utah 346, 71 P. 593; Fields v. Daisy Min. Co. et al., 26 Utah...

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8 cases
  • Gorges v. Gorges
    • United States
    • Idaho Supreme Court
    • April 2, 1926
    ... ... service is, therefore, not necessary. (Anderson v ... Anderson, 53 Mo.App. 268; Gibbs v. Gibbs, 26 ... Utah 382, 73 P. 641; Wesner v. O'Brien, 56 Kan ... 724, 54 Am. St. 604, 44 P. 1090, 32 L. R. A. 289; Rigney ... v. Rigney, 127 ... ...
  • Snyder v. Pike
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    • Utah Supreme Court
    • December 20, 1905
    ... ... statute fixing the place of trial in civil cases are not in ... conflict with said section of the Constitution. (Gibbs ... v. Gibbs, 26 Utah 382, 73 P. 641; Fields v. Daisy ... Gold Min. Co., 26 Utah 373, 73 P. 521; Sherman v ... Droubay, 27 Utah 47, 74 P. 348.) ... ...
  • Sanipoli v. Pleasant Valley Coal Co.
    • United States
    • Utah Supreme Court
    • September 14, 1906
    ...not to criminal acts committed . . . nor to disputes between individuals . . . which may or may not be brought before the court." (Gibbs v. Gibbs, 26 Utah 382.) And place of trial must be as provided by statute. Not only may an action be tried in some other county than that in which the cau......
  • Smith v. Smith
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    • January 10, 1951
    ...241 U.S. 518, 36 S.Ct. 613, 60 L.Ed. 1140; In re Indiana Transportation Co., 244 U.S. 456, 37 S.Ct. 717, 61 L.Ed. 1253; Gibbs v. Gibbs, 26 Utah 382, 73 P. 641; State ex rel. Howe v. Moran, 37 Nev. 404, 142 P. 534, and other cases supporting well recognized rules under which jurisdiction ove......
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