Jennings v. McDougle

• Decision Date: 21 January 1919
• Docket Number: No. 3785.,3785.
• Citation: 83 W.Va. 186
• Court: West Virginia Supreme Court
• Parties: Chas. p. Jennings v. Hon. Walter E. McDougle,Judge, etc., et al.

83 W.Va. 186

Chas. p. Jennings

v. Hon. Walter E. McDougle, Judge, etc., et al.

No. 3785.

Supreme Court of Appeals of West Virginia.

Submitted January 8, 1919.

Decided January 21, 1919.

1 Divorce Venue Process Statute.

The option granted by section 7, ch. 64, Code 1918, to the plaintiff in a divorce suit, of suing in a county other than that of the residence of the defendant, in case the parties last cohabited in the county so selected, carries with it by necessary implication the right to direct process to the sheriff of the county where defendant resides for service upon him there. (p. 188).

2. Same Venue Statute.

The general jurisdiction of a circuit court to grant divorces is circumscribed and limited by that part of section 7, eh. 64, Code, which provides that, if the defendant is a resident of this state, "the suit shall be brought in the county in which the parties last cohabited, or (at the option of the plaintiff) in the county in which the defendant resides." (p. 188).

3. Same Venue Option Statute.

By section 7, ch. 64, Code, there is but one circumstance or condition the existence of which confers upon the plaintiff in a divorce suit the right to compel the defendant to go out of the county of his or her residence to defend a suit for divorce brought in some other county. (p. 188).

4. Same Jurisdictional Facts Pleading.

Where the jurisdiction of a court to grant a divorce depends upon the existence of certain facts, such facts must be pleaded, and, if not pleaded, the court has no right or power to proceed or act in the ca.use. (p. 188).

5. Same Venue Fleading.

The mere allegation of separation, abandonment, desertion and refusal of cohabitation in a county is not the equivalent of an allegation that the parties last cohabited in such county. (p. 190).

6. Same Jurisdiction Venue '' In the County in which the Far

ties Last Cohabited.''

The phrase, "in the county in which the parties last cohabited," used in the statute, necessarily means the place where the parties ceased to live together as husband and wife in the same house, and ordinarily carries with it the idea of a substantial measure of continuity and regularity. (p. 190).

7. Pleading Verification Amendment Statute.

When a statute requires all pleadings to be verified by the party in whose name they are filed, (section 8, ch. 64, Code), an amendment of a pleading, especially if material and necessary to confer jurisdiction, must be verified, and if not verified, will be disregarded. (p. 191).

8. PkoHbition Jurisdiction in Divorce Suit Pleading and Proof.

Where the allegations of a bill in a divorce suit are sufficient to show prima facie jurisdiction, the rulings of the lower court upon facts offered to prove the allegations are at most only erroneous, and therefore not correctable by writ of prohibition; but where, as in this case, the allegation of essential jurisdictional facts is omitted, the lower court is wholly without jurisdiction in the cause, and where the court is assuming and continuing to act without such allegations, prohibition will issue to restrain such action. (p. 191).

9. Same.

Nor in such a case will the writ be delayed to give plaintiff time to correct the bill by proper amendment, (p. 194).

10. Same Other Remedies Action of Court without Jurisdiction.

When a court is attempting to proceed in a cause without jurisdiction, prohibition will issue as a matter of right regardless of the existence of other remedies. (p. 196).

Petition for prohibition by Charles P. Jennings against Hon. Walter McDougle, Judge, etc., and others.

Writ awarded.

A. F. McCue and Smitli D. Turner, for petitioner. Chas. E. Hogg, for respondents.

Lynch, Judge:

The petitioner, husband of the respondent Beryl Jennings, plaintiff in a divorce suit brought against him in the circuit court of Wood County, prays in his petition for a writ of prohibition to prevent her from further prosecuting the suit in that county, and the Honorable Walter E. McDougle, judge of the circuit court in which the suit was brought, from the continued assumption of judicial authority to hear and determine issues arising therein, the ground for the writ being want of jurisdiction to entertain the cause.

After their marriage in Cincinnati September 5, 1912, petitioner and his wife began and continued to cohabit together as husband and wife in Doddridge County until sometime in December, 1914, a fact the truth of which is not anywhere controverted, "at which time," according to the allegations of the bill, "they separated and have not since cohabited; that said separation took place in Parkersburg, and that the said defendant has during the greater portion of time since said separation resided in Doddridge County;"

and also "that on the............day of December, 1914, in Wood

County, the said defendant willfully, without any just cause therefor, deserted and abandoned this plaintiff, and has ever since and doth now willfully refuse to live and cohabit with this plaintiff as her husband." The process to answer was issued by the clerk of the circuit court of Wood County and directed to the sheriff of Doddridge County and by him served on the defendant at his place of residence in Doddridge County. Indeed, his residence elsewhere either permanent or temporary seems manifestly doubtful.

These are the sole facts alleged by the plaintiff in the divorce suit to empower the circuit court of Wood County to take cognizance of the cause averred for relief and to determine the matters in controversy and decree divorce from the matrimonial bonds, the grounds assigned therefor being willful abandonment and desertion without just cause, and disloyalty to the marriage vows. Nowhere in the bill is there any other statement or declaration which shows or tends to show such or any cohabitation as warranted the bringing of the suit in any county except the county of defendant's residence. The statute prescribing the jurisdiction of circuit courts in divorce cases (Ch. 64, §7, Code 1918) is: "The suit shall be brought in the county in which the parties last cohabited, or (at the option of the plaintiff) in the county in which the defendant resides, if a resident of this state; but; if not, then in the county in which plaintiff resides." This provision circumscribes and limits the jurisdiction of circuit courts to grant divorces by three specific conditions, two where defendant resides in this state, one where he is a nonresident of the state. As between the first two plaintiff had the option or the right to select in which of two counties she should prosecute the suit, the first in the county in which she and her husband last cohabited together as husband and wife, if such cohabitation last occurred in a county other than that in which he resided. But if it did not, then she could sue only in the county of his residence. The statute is susceptible of no other construction. Its language is imperative, unambiguous and specific. It designates the forum and limits the jurisdiction to two counties and only two, where the party in default is a resident of the state, notwithstanding the general jurisdiction of circuit courts. There is but one circumstance or condition the existence of which confers upon the plaintiff in a divorce suit the right to compel the defendant to go out of the county of his or her residence to defend a suit brought in some other county for a divorce, or to defend against charges such as are lodged against defendant, except when and as allowed by statute; and to bring her cause within the statutory requirements she must allege and prove the existence of the fact prescribed by the statute in order to maintain her suit in such other county.

The obvious purpose section 7 had in view was to save the plaintiff the embarrassment, annoyance and expense necessarily incident to the pursuit of a resident defendant, should he or she abandon or desert the other or otherwise disregard the marriage vows or duties and depart from the county where they last cohabited. The right given by it is one of the few exceptions to the general rule fixing the residence of the sole defendant, or the place where he may be found and served with process, as the situs of the forum where an action or suit may be maintained against him; and to bring herself or himself, as the case may be, within the exception, and to warrant the assumption or retention of jurisdiction of a divorce proceeding against a resident defendant, the plaintiff must allege in the bill the essential jurisdictional fact or facts. "Where the jurisdiction of a court depends upon the existence of facts, it has no right or power to proceed or act upon a pleading which does not substantially set forth such fact.'' City of Cliarleston v. Littlepage, 73 W. Va. 156, 164; Burke v. Superior Court, 7 Cal. App. 178, 93 P. 1058; Hogan v. Superior Court, 16 Cal. App. 783, 791. 0th- erwise the cause is coram non judice. Acts done by a court which has no jurisdiction over the person, the cause or the process are void. St. Lawrence Co. v. Holt & Mathews, 51 W. Va. 352, 363. Such, indeed, is the practically universal rule. See 13 C. J. 1235, and cases cited.

The mere allegation of separation, abandonment, desertion and refusal of cohabitation in Wood County, an allegation relied on as the legal equivalent of an allegation of the last actual cohabitation, as contended for by counsel, falls far short of alleging such jurisdictional facts as warrant the assumption of jurisdiction by the circuit court of Wood County to entertain the cause. The place of separation, abandonment, desertion and refusal of cohabitation and the place of the cessation of cohabitation by husband and wife need not necessarily be and frequently are not in the same county, and probably were not in this instance. No allegation of the bill shows the fact to be otherwise. A separation may occur anywhere, though the parties may have ceased to cohabit at some other place. The pharse, ''in the county...