OOLRINS, J.
Action for a divorce by the wife against the husband, commenced March 4, 1899, in the district court of the county of Fillmore. The complaint alleged that the plaintiff was, and had been for more than one year then last past, a resident of the county of Fillmore; that the defendant was a resident of the county of Olmsted; and that the defendant wilfully deserted the plaintiff for the term of one year next before the filing of the complaint. Another ground for a divorce — cruel and inhuman treatment — was also alleged, but the allegations of the complaint in this respect are here immaterial, as no evidence in support of them was offered on the trial. The defendant, before the time for answering expired, made and served an affidavit as to his residence, and demanded that the place of trial of the action be changed to the county of Olmsted, the county of his residence, which was duly filed, but the clerk of the court declined to transfer the papers. The defendant answered, denying the charge of desertion, and, in response to the charge of cruelty, alleged the pendency at the commencement of this action, in the district court of the county of Olmsted, of a former action between the same parties for the same cause. This was denied by the reply.
The cause was noticed for trial in the district court of the county of Fillmore, and on the first day of the term the defendant appeared specially, and objected to a trial in that county, and moved to strike the cause from the calendar, for the reason that the place of trial had been changed to the county of Olmsted. The objection was overruled, and the motion denied. The cause was tried in the county of Fillmore, notwithstanding the objection and exception of the defendant. The court made its findings of fact and conclusions of law to the effect that the charge of desertion was true; that the plaintiff was entitled to a divorce, with $12,000 alimony, and a further allowance of $500 for attorney’s fees. Judgment was so entered September 18, 1899, from which the defendant appealed.
We are not required to consider all of the assignments of error. Two seem to be important: First, was the place of trial changed from Fillmore to Olmsted county? and, second, was the finding as to desertion for one year immediately preceding the filing of the [375]*375complaint sustained by the evidence? The first is answered in the affirmative, and the second is answered in the negative.
1. By G. S. 1866, c. 62, § 10, it was prescribed that all actions for divorce should be commenced by summons and complaint in the county in which the plaintiff resided. No such provision existed as to other actions, and this indicates that for some special reason the legislative intent was to compel the bringing of this kind of action in the county of plaintiff’s residence, and not elsewhere. We can readily see that this was a wise and salutary regulation. It compels a plaintiff to actually acquire residence in some certain county before instituting an action, and it prevents the selection of another county than the one in which plaintiff so resides, through improper motives, — for instance, to conceal the pendency of the proceeding or to facilitate the obtaining of a decree. There has never been any change in this section of our statutes in which is prescribed the county in which an action for divorce must be commenced. G. S. 1894, § 4794. But it does not necessarily follow that such actions must be tried in the county of plaintiff’s residence.
At the time of the enactment of this 1866 statute, certain specified causes of action other than for divorce were to be tried in the county in which the subject of the action, or some part thereof, was situated, subject to the power of the court to change the place of trial as provided by statute. In all other cases actions were to be tried in the county in which the parties, or one of them, resided at the commencement thereof. G. S. 1866, c. 66, §§ 38-40. There was no special provision of law which required that actions be commenced in the county in which one of the parties resided, except in divorce actions, as before stated, so at that time, and until the year 1877, there was no lack of harmony in the statutes. An action for divorce was necessarily commenced in the county of plaintiff’s residence, as required by section 10, c. 62, supra, and it was tried there, in accordance with the provisions of section 40, c. 66, supra. But in the year last mentioned section 40 was radically amended so that it read as we find it in G. S. 1894, § 5185. By this amendment it was provided that all actions, except those in which the state is plaintiff, or those otherwise excepted as previously specified, should be tried in the county in which the defendants, or any of them, [376]*376reside at the commencement of the action. This amendment was broad and emphatic. It changed the whole policy of the state as to place of trial of civil actions. It deprived the plaintiff of his previously existing statutory right to have his action tried in the county of his residence, subject to a change for good cause shown, and conferred this absolute right upon the defendant.
. The change was so great and sweeping as to indicate to a majority of this court a clear intent as to the legislative policy, and that it was expressly intended to deprive the plaintiff of that which had been his statutory right, and to transfer it to the defendant, namely, the power to compel the trial of all actions, save those specially excepted, in the county in which the defendant resided. Actions for divorce were not excepted in terms, and, if at all, it must be because of the 1866 statute specifying the county in which they must be commenced. There is no good reason why such actions should be excluded from the operation of the law which governs generally. There are some excellent reasons why they should not be. One is that without such a construction of the statute the plaintiff in any divorce action may select the place of trial simply by obtaining a legal residence in any county of the state. He may choose the county, and compel ‘defendant’s attendance there. It is of no consequence that he has for years resided elsewhere in the state. Hood public policy is opposed to promoting divorce cases, and courts should not, by construing statutes, aid the parties in obtaining decrees. We should not construe any legislative expression so as to encourage any person who is seeking a divorce to locate himself where his fancy dictates, or where his interests may be best subserved, and at his will compel the defendant to go into that county for the purposes of trial.
This case illustrates what may be done if our views as to the statute of 1877 are not correct. The parties had resided in Olmsted county for over nine years when the husband brought the action, and he still resides there. When the-parties separated, the wife established her residence in Fillmore county, and therein brought her action. We do not question her good faith in locating in the latter county, but the opportunity for the exercise of highly improper motives would be easily afforded if the law sustains her. [377]*377But it may' be urged that this is an irrational construction of the two provisions, one of which compels the commencement of the action in the county of plaintiff’s residence, while the other confers the power upon the defendant, if he chooses to exercise it, to have his case tried in the county in which he resides. We think not. On the contrary, it is the only construction which reconciles and harmonizes the two separate sections. It renders them consistent.
Free access — add to your briefcase to read the full text and ask questions with AI
OOLRINS, J.
Action for a divorce by the wife against the husband, commenced March 4, 1899, in the district court of the county of Fillmore. The complaint alleged that the plaintiff was, and had been for more than one year then last past, a resident of the county of Fillmore; that the defendant was a resident of the county of Olmsted; and that the defendant wilfully deserted the plaintiff for the term of one year next before the filing of the complaint. Another ground for a divorce — cruel and inhuman treatment — was also alleged, but the allegations of the complaint in this respect are here immaterial, as no evidence in support of them was offered on the trial. The defendant, before the time for answering expired, made and served an affidavit as to his residence, and demanded that the place of trial of the action be changed to the county of Olmsted, the county of his residence, which was duly filed, but the clerk of the court declined to transfer the papers. The defendant answered, denying the charge of desertion, and, in response to the charge of cruelty, alleged the pendency at the commencement of this action, in the district court of the county of Olmsted, of a former action between the same parties for the same cause. This was denied by the reply.
The cause was noticed for trial in the district court of the county of Fillmore, and on the first day of the term the defendant appeared specially, and objected to a trial in that county, and moved to strike the cause from the calendar, for the reason that the place of trial had been changed to the county of Olmsted. The objection was overruled, and the motion denied. The cause was tried in the county of Fillmore, notwithstanding the objection and exception of the defendant. The court made its findings of fact and conclusions of law to the effect that the charge of desertion was true; that the plaintiff was entitled to a divorce, with $12,000 alimony, and a further allowance of $500 for attorney’s fees. Judgment was so entered September 18, 1899, from which the defendant appealed.
We are not required to consider all of the assignments of error. Two seem to be important: First, was the place of trial changed from Fillmore to Olmsted county? and, second, was the finding as to desertion for one year immediately preceding the filing of the [375]*375complaint sustained by the evidence? The first is answered in the affirmative, and the second is answered in the negative.
1. By G. S. 1866, c. 62, § 10, it was prescribed that all actions for divorce should be commenced by summons and complaint in the county in which the plaintiff resided. No such provision existed as to other actions, and this indicates that for some special reason the legislative intent was to compel the bringing of this kind of action in the county of plaintiff’s residence, and not elsewhere. We can readily see that this was a wise and salutary regulation. It compels a plaintiff to actually acquire residence in some certain county before instituting an action, and it prevents the selection of another county than the one in which plaintiff so resides, through improper motives, — for instance, to conceal the pendency of the proceeding or to facilitate the obtaining of a decree. There has never been any change in this section of our statutes in which is prescribed the county in which an action for divorce must be commenced. G. S. 1894, § 4794. But it does not necessarily follow that such actions must be tried in the county of plaintiff’s residence.
At the time of the enactment of this 1866 statute, certain specified causes of action other than for divorce were to be tried in the county in which the subject of the action, or some part thereof, was situated, subject to the power of the court to change the place of trial as provided by statute. In all other cases actions were to be tried in the county in which the parties, or one of them, resided at the commencement thereof. G. S. 1866, c. 66, §§ 38-40. There was no special provision of law which required that actions be commenced in the county in which one of the parties resided, except in divorce actions, as before stated, so at that time, and until the year 1877, there was no lack of harmony in the statutes. An action for divorce was necessarily commenced in the county of plaintiff’s residence, as required by section 10, c. 62, supra, and it was tried there, in accordance with the provisions of section 40, c. 66, supra. But in the year last mentioned section 40 was radically amended so that it read as we find it in G. S. 1894, § 5185. By this amendment it was provided that all actions, except those in which the state is plaintiff, or those otherwise excepted as previously specified, should be tried in the county in which the defendants, or any of them, [376]*376reside at the commencement of the action. This amendment was broad and emphatic. It changed the whole policy of the state as to place of trial of civil actions. It deprived the plaintiff of his previously existing statutory right to have his action tried in the county of his residence, subject to a change for good cause shown, and conferred this absolute right upon the defendant.
. The change was so great and sweeping as to indicate to a majority of this court a clear intent as to the legislative policy, and that it was expressly intended to deprive the plaintiff of that which had been his statutory right, and to transfer it to the defendant, namely, the power to compel the trial of all actions, save those specially excepted, in the county in which the defendant resided. Actions for divorce were not excepted in terms, and, if at all, it must be because of the 1866 statute specifying the county in which they must be commenced. There is no good reason why such actions should be excluded from the operation of the law which governs generally. There are some excellent reasons why they should not be. One is that without such a construction of the statute the plaintiff in any divorce action may select the place of trial simply by obtaining a legal residence in any county of the state. He may choose the county, and compel ‘defendant’s attendance there. It is of no consequence that he has for years resided elsewhere in the state. Hood public policy is opposed to promoting divorce cases, and courts should not, by construing statutes, aid the parties in obtaining decrees. We should not construe any legislative expression so as to encourage any person who is seeking a divorce to locate himself where his fancy dictates, or where his interests may be best subserved, and at his will compel the defendant to go into that county for the purposes of trial.
This case illustrates what may be done if our views as to the statute of 1877 are not correct. The parties had resided in Olmsted county for over nine years when the husband brought the action, and he still resides there. When the-parties separated, the wife established her residence in Fillmore county, and therein brought her action. We do not question her good faith in locating in the latter county, but the opportunity for the exercise of highly improper motives would be easily afforded if the law sustains her. [377]*377But it may' be urged that this is an irrational construction of the two provisions, one of which compels the commencement of the action in the county of plaintiff’s residence, while the other confers the power upon the defendant, if he chooses to exercise it, to have his case tried in the county in which he resides. We think not. On the contrary, it is the only construction which reconciles and harmonizes the two separate sections. It renders them consistent. It must not be forgotten that for many years prior to the enactment of the law of 1877 there was perfect harmony on the subject, and that the conflict then arose out of the amendment therein made to the general provision as to the place of trial. With this construction we give effect to both provisions in divorce actions, and neither is nullified and disregarded. Under the provisions of Laws 1895, c. 28, § 1, which amended G. S. 1894, § 5188, the place of trial of this action was in fact transferred to the county of defendant’s residence upon the filing with the clerk of court the affidavit and demand, with due proof of service upon plaintiff’s attorneys. No further proceedings in the case should have been had in the district court for Fillmore county.
2. A majority are of the opinion that while the action for divorce commenced by the husband, and in which the wife filed a cross bill, was pending between the parties, the former was not guilty of desertion. We are also of the opinion that the action was pending until judgment was entered, March 8,1899. The charge of adultery made by the husband was tried in June, 1897, the verdict being in favor of the wife. The charges contained in her cross bill — cruel and inhuman treatment — were tried in the following August. Both parties were denied divorce in September, when the district judge filed his findings of fact and conclusions of law. Either party could have then caused an entry of judgment, and thus have finally terminated the litigation. Motions were thereafter made by the parties, and on March 2, 1899, counsel for the wife served notice of motion to tax costs and disbursements, and caused judgment to be entered March 8, four days after the commencement of this action.
Of course, parties to divorce proceedings should live separate during the pendency of the action, for while the suit is in progress [378]*378cohabitation would be highly improper. Separation under such circumstances cannot be wrongful, but is contemplated by law, the husband being compelled to support his wife while the suit is taking its course. If separation of this character is not wrongful, a charge of desertion cannot be based upon it, and the period of separation which is proper — that is the legitimate, actual, and direct result of the proceeding — cannot be reckoned as any portion of the year which, under our statute, must fully elapse and expire before an action for divorce on the ground of desertion can be commenced. So the question is, wthen does the period of separation which is justifiable terminate? Was it, in this case, when the jury, by their 'verdict, declared the wife not guilty of the charge of adultery? Or was it at a subsequent time, when the court determined that the husband had not treated his wife cruelly or inhumanly, and refused to grant relief to either party in its conclusions of law? Or was it —following the general rule as to rights predicated upon litigation —when final judgment was entered in the original divorce action, and the litigation ended in a formal manner? We think that there was no actionable desertion by either party until the judgment was entered. This is a definite rule in such matters, and there is no other which will prove at all certain or stable. This action was prematurely brought; in other words, the defendant had not deserted the plaintiff for the required statutory period of one year ivhen she instituted her action.
3. A motion for an allowance to plaintiff for attorney’s fees in 'this court was submitted at the time of the argument. It is ordered that there be allowed to said plaintiff, and that defendant pay, the sum of $200 on account of attorney’s fees.
Judgment reversed.