Rumping v. Rumping

• Citation: 36 Mont. 39
• Case Date: October 21, 1907
• Court: United States State Supreme Court of Montana

36 Mont. 39

RUMPING
v.
RUMPING.

Supreme Court of Montana.

Oct. 21, 1907.

Appeal from District Court, Yellowstone County; Sydney Fox, Judge.

Suit by John H. Rumping against Eva Rumping. From a decree for plaintiff, defendant appeals. Reversed and remanded.

Edward Horsky, for appellant.

O. F. Goddard, for respondent.

SMITH, J.

This is an action for divorce, appealed from the district court of Yellowstone county. The cause of action is based on the alleged desertion of the plaintiff by the defendant. The complaint fails to allege that the plaintiff has been a resident of this state for one year next preceding the commencement of the action, as required by section 176 of the Civil Code. The only pleading on the part of the defendant is an answer, in which she denies generally all of the allegations of the complaint, except those of marriage and birth of issue. The defendant failed to appear at the trial. Evidence was offered by the plaintiff, whereupon the court found all of the allegations of the complaint to be true and entered a decree dissolving the marriage. Defendant appeals.

The cause was presented to this court without argument, and we have received no assistance from the briefs of counsel; the appellant submitting the bald statement that the judgment should be reversed, and the respondent contending that it should be affirmed. The question involved is a new one in this jurisdiction, and not as easy of decision as the failure of counsel to examine the same would seem to indicate. It is also an interesting one from a lawyer's standpoint. Section 176 of the Civil Code, supra, reads as follows: “A divorce must not be granted unless the plaintiff has been a resident of the state for one year next preceding the commencement of the action.” If the allegation of plaintiff's residence is jurisdictional in its nature, the objection can, of course, be urged for the first time in this court. Our research has discovered the case of Dutcher v. Dutcher, 39 Wis. 651, which appears to be authority for the action of the trial court in holding that the pleadings do not raise the issue of plaintiff's residence. The opinion is by Chief Justice Ryan, and for that reason is entitled to the respectful consideration of courts, and, viewed in the light of the rules of both common-law and Code pleading, seems unanswerable on that point. The divorce statute of Wisconsin at the time read as follows: “No divorce shall be granted unless the petitioner or plaintiff shall have resided in this state one year immediately preceding the time of exhibiting the petition or complaint,” etc. Rev. St. Wis. 1858, c. 111, § 12. The court said: “But the question remains whether the pleadings raise the issue of her [plaintiff's] residence. Her want of residence under the statute is clearly a personal disability, not affecting the present right of action, but only the present right to prosecute the action, a disability which might be cured; clearly matter of abatement, not of bar.” Story's Equity Pleading, § 708, is then quoted as follows: “All declinatory and dilatory pleas in equity are properly pleas, if not in abatement, at least in the nature of pleas in abatement, and therefore, in general, the objections founded thereon must be taken ante litem contestatam by plea, and are not available by way of answer, or at the hearing.” And 1 Chitty's Pleading, 446, as follows: “Whenever the subject-matter of the defense is that the plaintiff cannot maintain any action, at any time, whether present or future, in respect of the supposed cause of action, it may and usually must be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in abatement.” The court then proceeds: “So...