Smith v. Smith

• Decision Date: 01 May 1901
• Docket Number: 6731
• Citation: Smith v. Smith, 10 N.D. 219, 86 N.W. 721 (N.D. 1901)
• Court: North Dakota Supreme Court

86 N.W. 721

10 N.D. 219

CHARLES A. SMITH v. CORA A. SMITH

No. 6731

Supreme Court of North Dakota

May 1, 1901

Appeal from District Court, Cass County; Pollock, J.

Action by Charles A. Smith against Cora A. Smith.Judgment for defendant, and plaintiff appeals.

Affirmed.

M. A Hildreth, for appellant.

The defendant, by her answer, admitted the marriage and the residence of the plaintiff as set forth in the complaint.The defendant, therefore, is not at liberty to raise an issue as to plaintiff's residence, which she has closed by the admission in the answer.WhartEv. 1110;Paige v Willet,38 N.Y. 28;Myrick v. Bill,17 N.W 268;Fleishman v. Stein,90 N.Y. 110;Walrod v Bennett,6 Barb. 144;Ballow v. Parsons,11 Hun. 662.A judgment contrary to the admission of the pleadings must be set aside.Getty v. Towne,46 Hun. 1;Budge v. Passon,5 Sanf. 210;Campo v. Lassen,67 Cal. 139;Burnett v. Stearns,33 Cal. 469;Silvy v. Neary,59 Cal. 97;Manley v. Hallock,55 Cal. 94; 1 Rice on Ev. 228.

Turner & Lee, for respondent.

(No brief on file.)

OPINION

MORGAN, J.

This is an action for a divorce from the bonds of matrimony.The complaint states two grounds for such divorce, viz.: desertion and extreme cruelty.The complaint also states "that for more than ninety days last past, and prior to the commencement of this action, the plaintiff has been, and now is, a bona fide resident of the state of North Dakota."The defendant interposed an answer denying the desertion and the extreme cruelty set forth in the complaint, and admitting in terms the marriage of the parties and the bona fide residence of the plaintiff in the state of North Dakota.At the trial in the court below, the defendant appeared in court by her attorneys only.They did not participate in the proceedings by a cross-examination of the plaintiff or otherwise.The trial court dismissed the action upon the sole ground that the plaintiff was not a bona fide resident of the state of North Dakota.The plaintiff excepted to such dismissal, and appeals to this court, demanding a review of the entire case.There is no appearance on the part of the respondent in this court.

At the close of plaintiff's direct examination by his attorney, during which examination he had not been asked anything concerning his residence, nor had he testified concerning the same, the court asked him this question: "Where do you live?"Plaintiff's attorney objected to the question, alleging as grounds that it was not proper cross-examination, incompetent, irrelevant, and immaterial and upon the ground that the answer admitted the residence.The objection was overruled by the court, after which the examination continued at length.The question of law thus raised is, what is the effect of an admission on the record by the defendant of the residence of the plaintiff, so far as the parties or the court are concerned?If the action were any other civil action, affecting the rights of the parties only, it may be admitted that any admission in the answer of any fact in the complaint would be the equivalent of proof of such fact, and such would be true of any fact alleged in the complaint not controverted by the answer.Section 5292, Rev. Codes.An admission in the answer of the sufficiency of the plaintiff's residence in the state to enable him to maintain his action and secure a decree presents a very different question.It is generally, if not universally, held by the courts of this country that residence in the state for the prescribed time before commencing an action for a divorce is jurisdictional.This court has so held in two cases.Smith v. Smith, 7 N.D. 404, 75 N.W. 783;Graham v. Graham, 9 N.D. 88, 81 N.W. 44.In the Smith case, cited, the court says, in substance, that a divorce granted in this state to one not a good-faith resident of the state would be without binding force in other jurisdictions; and the principle thus announced is sustained by courts generally, if not universally.Thelen v. Thelen, (Minn.)78 N.W. 108;Black, Judgm.§ 930; Freem.Judgm.§ 580;Dunham v. Dunham, 162 Ill. 589, 44 N.E. 841.In Smith v. Smith, supra, this court says, "The statute requiring residence, which means domicile, for a period of ninety days, as preliminary to starting an action for a divorce, is jurisdictional to the subject-matter."Residence must be established to have been within the letter and spirit of the statute before the action was commenced, or the court acquires no jurisdiction of the subject-matter of the action.The appearance of the defendant would not supply such want of jurisdiction.Her consent that the court proceed with the trial without inquiry as to plaintiff's residence would be binding upon her, perhaps, but upon no one else.Nor would her admission in her answer of plaintiff's residence confer upon the court any jurisdiction in this respect.That must be obtained by the plaintiff bringing himself strictly within the terms of the statute.It is against the policy of the law that divorces be decreed by consent of the parties immediately interested.It is likewise against the policy of the law that courts should grant divorces to any applicants save bona fide residents of this state.It is for this reason that courts are not restricted in their judicial inquiries as to facts in issue under the pleadings in divorce cases.This question has often been before the courts, as the following extracts will show: "In every divorce suit, the state, for the enforcement of its policy concerning the marital relation, constitutes the third party, and no admission can be made by the other parties which will affect the public interest."Prettyman v. Prettyman, 125 Ind. 149, 25 N.E. 179."An averment in the complaint for a divorce that the applicant has been six months a resident of this state, and a failure to deny the averment in the answer, does not do away with the necessity of proving residence."Bennett v. Bennett, 28 Cal. 599 at 600.See, also, Schmidt v. Schmidt, 29 N.J.Eq. 496, and 7 Enc.Pl. &Prac. p. 88, tit."Divorce."We therefore reach the conclusion that the admission of residence in the answer was not the admission of such an issuable fact as dispensed with the necessity for proof on that subject.

We also have no difficulty in reaching the conclusion that it was the right and the duty of the trial court to inquire of the plaintiff concerning his residence.In divorce casesthe plaintiff and defendant are not the only interested parties.The state is interested.The citizens of this and other states are interested that no divorce shall be granted that is not sustained by well-founded jurisdiction.This court has said in Smith v. Smith, supra: "In a divorce case, the sovereign state is always present as a party in the action,--not technically, but actually and potentially, a party.The state, represented by the court, is there to see to it that no mere transient inhabitant, whose domicile is elsewhere, shall call upon the courts of this state to adjudicate upon the marital relations of citizens of other states or nations.To do so would not only be without results, except as a purely local affair, but would be a gross violation of the comity of states, and one directly calculated to lead to much social and domestic discord, and unhappiness to the innocent parties directly concerned in the action."We adopt this language of the present chief justice as directly applicable to actions of this nature.In Moore v. Moore, 41 Mo.App. 176, it is said "In such...