Rumping v. Rumping

• Citation: 91 P. 1057,36 Mont. 39
• Parties: RUMPING v. RUMPING.
• Decision Date: 21 October 1907
• Court: United States State Supreme Court of Montana

91 P. 1057

36 Mont. 39

RUMPING v. RUMPING.

Supreme Court of Montana

October 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 Lord Redesdale distinguishes pleas 'that the plaintiff is not entitled to sue by reason of some personal disability,' and that 'the plaintiff has no interest in the subject, or no right to institute a suit concerning it,' from pleas in bar, and calls them pleas to the person of the plaintiff. And the distinction is not one of form merely, but of substance; for generally judgment for the defendant on pleas in abatement abates the action only, on plea in bar, bars the cause of action everywhere and forever. In the present case judgment against the respondent for want of residence within the statute should not operate to bar another action here, if she should have acquired a residence, or elsewhere, at any time or under any circumstances. *** If certain matters in abatement are apparent in the complaint, they are ground for demurrer under the Code. But if matter in abatement, not apparent in the complaint, be relied on as a defense, it must be specially pleaded in the answer. A general denial is a plea in bar, not broader at least than the general issue at common law, and cannot raise any defense by way of abatement. *** Judgment for the defendant upon a general denial is a general judgment-a bar to all future actions for the same cause. And it would be a cruel abuse that it should go upon a defense in abatement concealed in gremio. The Code intended no such perversion of justice. And it is well settled in this court that matter in abatement, not apparent in the complaint, must, like other special defenses, be specially...