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

lclle whenever 1t is necessary or prop
er that she should do so. The right
springs from the necessity for Its ex-
ercise, and endures as long as the
necessity continues. 2 Bishop on
Marriage and Divorce, AIS. The pro-
ceeding for a divorce may be insti-
tuted where the wife has her domicil.
The place Of the marriage. of the Of
tense. and the domicil of the husband
are OF no consequence. Ditson VS..
Ditson, a r. l.. 81"
Eminent authority supports the
proposition that under modern law
| the wife may acquire a domicile sep
arate and distinct from that of ner
husband where the unity of the hus-
band and wife is preached, as for in
stance where the husband has given
cause for divorce (Atherton VS.. Ath-
erton, 155 N. Y. 129; Frary vs.. Frary.
a2 Amer. Dec. 1915; Buchholz VS..
Buchholz, 63 Wash. 213, An Cas-.
l912-D, 395, see note; Duzstad vs..
Duxstad. 100 Pac. 112, 12o Amer. St.
Rep. .1138; 9 R. c. L. 545), or where
by mutual agreement there is a sepa-
ration g R. c. L, 545), or where by
the institution of divorce proceedings
the dissolution of the unity is made
manifest Genness VS.. Jenness. supra:
McGrew vs.. Mutual Life Insurance
Company, a. Pac. 1889. ;
1t may, we think, be safely asserted
as an established proposition of law
that if the plaintiff is a bona fde resi-
dent of the state of the forum, the
courts of that state may acquire juris-
diction to decree a divorce in his or
her favor, irrespective of the domlcile
or residence of the defendant.
9 R. C.. L. 400.
In the case of Tiedcmann VS.. Tiedei
mann, supra, this court held that an
action for divorce may be Instituted
by a resident of the state in a court
of the county regardless of the resi-
dence of the defendant if it is allegr
ed that the. defendant can be found
within. the county where the suit Is
instituted and is acuall- served with
process therein.
The residence of the wife. the de-
PENDANT in the case at bar. even
though the same might be within this
state and within the alleged county,
would. as we view it. avail nothing in
the way OF comforting jurisdiction
where the plaintiff. the husband. was
a resident Of and domiciled in another
state and made no pretense of assert
ing residence within this jurisdiction
The fixed domicile of the parties was
the domicile of the husband. the
plaintiff in this action. True. the
wife might, under conditions hereto
fore referred to. establish a separate
domici1e and when the same was es-
tablished under the laws of the state
she might sue for divorce and thereby
>~.,f,. :l:k:n ,~-~ H. a0..s
Of the state in which her new .domi-
case presented. in the record before
us. The matrimonial domicile of the
parties in the case at bar was in an
the plaintiff in this action was on
cerned, he Claiming no residence Or
domicile within this state, could not,
as we veiw it, bring his status within
the jurisdiction of our Districttcourt.
DomiciH in legal contemplation
depends rot alone upon residence.
but upon all the circumstances STIR
rounding the act of residence.
9 R. c. L.. $40.
The establishment of residence,
like that of domicile. must depend
largely upon the intention of the
party, and no intention can be even
assumed where in a matter of this
kind the party seeking to confer jur-
isdiction on the courts for the pur-
pose of having the latter determine
his martial status declines to even as
sert his residence.
J The rule RECOGNIZING the right OF
the wife to acquire another and sep
arate domicile from her husband
where their unity, is dissolved will
not avail in behalf of the husband to
the extent that he may go into a jur-
isdiction foreign to- the matrimonial
domicile and, without asserting his
residence or domicile therein. invest
the courts with jurisdiction to deter
mine his marriage statue.
Haddock VS.. Haddock, 201 u. S.
562; 50 Law. Ed. 867; S An, Cas-. p. |.
The right of the wife to establish a
separate residence and domicile from
that OF the husband arises out of the
necessity of the case. and as we view
the law her right to assert a separate
residence grows out of the grounds
or causes by reason of which the
matrimonial unity no longer exists m
| tact. 1t is the averment of a resi-
dence separate and apart from that
of the husband. together with the
causes for such separate residence,
that gives the wife the right to sue
for divorce in the courts. of a jurisdic-
ton other than that of the matrimon-
al domicile.
This case is to be distinguished
from the case of Tiedemann VS..
Tiedemann, supra, inasmuch. as in
that case the wife asserted in her
verified complaint grounds which it
proven were sufficient to establish a
cause for her maintenance of a sepa-
rate residence and domicile, and
coupled with these averments was
the allegation of her residence with
in this jurisdiction; while in this case
no averment of residence on the part
of the husband, the plaintiff, appears,
and the marital offenses of which he
complains were such as might o
egly have been determined by the
courts of the matrimonial dom1ciIe.