Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-01
OPINION

~ & OE ~
By the Court, McCHran, J.
This was an action in divorce. lhe
complaint in the action set forth:
That the defendant, Elizabeth
Roosa Aspinwall, is now living in and
can be found in and is a, bona hde
resident of Washoe county. State OF
Nevada, and that plaintiff is now IN
said county. :, 49,
That substantial parts of this
cause. of action accrued in said Wa
shoe county, State of Nevada i
Two causes of action are set up IN
the complaint in furtherance of plain
tif's prayer for a decree of divorce.
The first cause of action is that OF
extreme cruelty resulting in mental
anguish to the plaintiff and SO forth:
The second cause of action is that OF
adultry and the complaint in that re-
spect alleges, on information and be-
lief, acts of adultery committed by
defendant in the town OF chatham,
Morris county state OF New Jersey.
and in the city of New York, state>pt
| New York, and at 700 Wheeler Ave
nue., in the city of, Reno, state. OF Ne
vada, and elsewhere in the county OF
Washoe, state of Nevada. :.
A demurrer to. the~complaint was
interposed by defendant, respondent
herein in which, among other things.
| the demurrant asserted the want OF
jurisdiction of the District court.
The matter being submitted on de-
murrer. the same was sustained by
the court for want of jurisdiction.
The plaintiff, appellant herein. de-
| Ginning to amend his complaint, an or
der was entered dismissing the action,
! From this order appeal is prosecuted
to this court.
1t will be observed that the COM
plant in this action makes no pre-
tense at asserting either that the resi-
dence of the plaintiff was within this
safe or that he was domiciled within
the jurisdictiop of the court. The
plaintiff in the court below, appellan,
herein, sought to assert the jurisdic-
tional prerequisite by alleging that
the defendant, Elizabeth Roosa AS
pinwall, SIS now living in and can be
found in and is a bona hde residen,
of Washoe county. state OF Nevada
Our statute applicable to the sub
ject reads as follows:
Divorce from the bonds of matri-
mony may be obtained, by complaint
! under oath, to the District court OF
the county in which the cause there
for shall have accrued, or in which
the defendant shall reside or be
found, or in which the plaintiff shall
reside, if the latter be either the
county in which. the parties last CO.
habited, or in which the plaintiff shall
have resided six months before suit
be brought, for the following causes
X ~"
Stat. 1915. p. 20.
The appellant in this cas- relies up
on the decision of this court in the
case of Tiedemann VS.. Tiedemann. Sc
New. 4o4. In that case the wife, Ger
trude Eleanor Tiedemann, alleged in
her complaint: .t.s :
Il. That plaintiff is a resident OF
Carson City, Ormsby County, State
of Nevada. 49,.
IL. That plaintiff is informed and
believes, and upon such information
and belief alleges the,fact to be, that
said defendant is now within, and can
be found in said county of Ormsby,
and within the jurisdiction Of this
court" .. .-. .
The distinction between the allega-
tons of residence contained in the
complaint in the Teideman case and
those found in the complaint in the
case at bar must not be lost sight OF
in arriving at a correct application OF
the law of the case. In the matter at
bar, the husband, Lloyd Aspinwall,
files his complaint, making no allega-
ton or even attempted allegation OF
residence within this state or within
the jurisdiction of the District court.
In this respect, the only averment in
the complaint is that plaintiff is now
in said county" In the Tiedemann
case the wife, as plaintiff, asserted
her residence within theN jurisdiction
of the district court. and alleged
grounds which would warrant the as
sumption of separate domicile.
We approach the consideration OF
the matters presented in this record
in the light of legal doctrines quite
we'll established. At common law it
was a we1l-founded rule that a woman
on her marriage losses her own DOM
icile and acquires that of her husband.
Barber VS.. Barber. 10 U. S. Claw.
Ed.) 226.
Harrison VS.. Harrison. Sc Amer.
Dec. III. =,
Tenness VS.. Jenness. 81 Amer. Dec.
1886.
Hair ston VS.. Hairston. 81 Amer.
Dec. $50 .es.
Ann. Cas-. 1o12-D. 4GO-see note.
While this, general rule established
at common law may prevail today.
modern law and modern decisions
have established at, least one we'll
founded and well sustained excep-
ton.
The Supreme court of the United
States in the case of Cheever VS.. Will
son 10 u. S. claw. Ed GOA. in ans
wer to the proposition that the domi-
Gle of the husband is the swife's and
that she cannot have a different n
from his, said: s5 II $500
"The of the. latter prop
osition is so we'll settled that it would
be idle to discuss it. The rule is
that she may acquire a separate dom