Hanson v. Hanson

111 Mass. 158

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1872
• Status: Published

Opinion

Gray, J.

By the Gen. Sts. e. 107, § 19, a libel for divorce may be presented to the court and a summons issued thereon in any county. But by § 13, it must be heard and determined in the court held for the county in which “ the parties or one of them live;” and by § 14, “when the libellant has left the county in which the parties have lived together, the adverse party still living therein, the libel shall be heard and determined in the court held for that county.” The only question reserved by the report is, whether, under the provisions of these two sections, this libel may be heard and determined in this county, or, in other words, whether the libellee is, within the meaning of these provisions, “ still living ” in the county of Norfolk. We are all of opinion that he is, and that the word “ living,” in this statute, is equivalent to “residing” or “having a domicil,” and that this construction has been, by necessary inference, settled by the decisions of the court upon the effect of the same words in the section next preceding.

By that section, § 12, (except “ when the libellant has resided in this state five consecutive years next preceding the time of filing the libel,”) “ no divorce shall be decreed for any cause, if the parties have never lived together as husband and wife in this state; nor for any cause occurring in any other state nr country, unless before such cause occurred the parties had lived together as husband and wife in this state, and one of them lived in this state when the cause occurred.” It has been adjudged, under the second part of that section, that where a husband and wife left their domicil in this state with the intention of making their domicil elsewhere, and, while temporarily residing together at an intermediate place, the wife left the husband on account of his cruelty towards her there, and returned to her former home in this state, she might maintain a libel for a divorce here, upon the ground that she “ lived in this state when the cause occurred.” Shaw v. Shaw, 98 Mass. 158. It has also been adjudged that a husband and wife who had for some time resided and cohabited together in this Commonwealth, without any intention of making their domicil here, had “ never lived together as husband and wife in this state ” within the meaning of the first part of that section. Ross v. Ross, 103 Mass. 575. Fansler v. Fansler, Ib. 577 note. The meaning thus attached to the word “ living ” in § 12 must adhere to the same word in §§ 13,14. Any other construction would introduce irreconcilable inconsistency and confusion in the administration of our divorce act.

It follows that the libellee, while imprisoned in the state prison in the county of Middlesex, still retained his domicil in the county of Norfolk, not only for all purposes of taxation and settlement, and the exercise of political rights in case of his pardon and release from imprisonment, and of suing and being sued in an action at law, under the Gen. Sts. a. 123, § 1, but also for the purposes of ascertaining where a libel for divorce against him should be tried. His arrest and imprisonment for crime, and the sale, with his concurrence, of his homestead after he had been so imprisoned, and after his wife and family had removed from it, can have no effect to change his domicil for any purpose.

The result is, that this libel cannot be heard and determined in this county, and that the clerk must issue a

New summons returnable in Norfolk.