Schonwald v. Schonwald
| Decision Date | 30 June 1856 |
| Citation | 2 Jones 367,55 N.C. 367 |
| Court | North Carolina Supreme Court |
| Parties | SCHONWALD v. SCHONWALD. |
The three years residence, required by the Act of Assembly, ch. 29, sec. 7, Rev. Stat., of the petitioner in a suit for a divorce, previously to filing a petition, or bill, must be an actual residence, and when the wife sues, the legal maxim that “her domicil is that of her husband,” will not avail in the stead of an actual residence.
THIS was an APPEAL from the Court of Equity of New-Hanover County, Judge CALDWELL presiding.
The bill was filed by the plaintiff, alleging adultery on the part of the husband, and an abandonment of his wife; and the prayer is for a divorce and dissolution of the bonds of matrimony, &c.
The main question in the case arises upon the following allegation in the plaintiff's bill: “And your petitioner further shows to your Honor, that her said husband has resided in the town of Wilmington for more than eight years, and although she has not been living with him three years, in all, in this State, yet she is advised that the domicil of her husband is her domicil, and, therefore, she has been resident of this State for more than the last three years preceding the present time.” The defendant answered; replication taken; commissions and proofs.
The proper issues were made up and submitted to the jury; amongst the rest was the following: “Has the plaintiff resided three years in this State, next before the filing of her said bill?”
On the trial of the issues, his Honor, amongst other instructions, told the jury that, according to admissions of the plaintiff, under oath, she had not resided in the State three years next before the filing of her bill, and no witness had been examined by her to prove an actual residence for three years, as required by the statute, though it was competent for her to have done so; that the position taken by her counsel that the domicil of the wife was the domicil of the husband, was, in many cases, a fiction that gave way to the fact; and, in this case, an actual residence of three years must be made to appear.
The counsel moved the Court to charge that the onus of proving the domicil of the plaintiff out of the State, under the circumstances of the case, devolved on the defendant; but the Court declined so to charge. The plaintiff excepted.
Verdict for the defendant. Judgment that the bill be dismissed. Appeal by the plaintiff.
W. A. Wright and Strange, for plaintiff .
London, for defendant .
The whole question turns upon the wording of the statute of this State upon ““Divorces.” Rev. Code, ch. 39, sec. 7. That section has this provision: “Nor shall any person be entitled to sue, unless he or she shall have resided within the State three years, immediately preceding the exhibition of the petition.” This requirement is...
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