Kashaw v. Kashaw

Heydenfeldt, Justice, delivered the opinion of the court. Murray, Chief Justice, concurred. This was a bill filed for a divorce, and a partition of the common property. A demurrer was sustained, on the grounds,— 1st. That the wife had no legal capacity to sue. 2d. That several causes of action are improperly joined. 3d. That she had not resided in the State for six months preceding the commencement of the suit, and is therefore not entitled to sue for a divorce. Our Practice Act permits the wife to sue alone, when the action is between herself and her husband: Laws, 520. It is said, however, that there are other parties defendant to this action, and, therefore, it is not a suit between her and her husband only. It is a sufficient answer to this objection, that the statute does not use the word “ only.” The test of the wife’s capacity to sue, is simply to ascertain if the suit is between her and her husband, and this being found in the affirmative, the necessity of introducing other parties cannot affect her right. The object of the act is to take away the necessity of the old form of suing by 'proc'hein ami, and being a remedial statute, it must be beneficially construed. 2d. The act in relation to Husband and Wife, declares that in case of the dissolution of the marriage by a court of competent jurisdiction, the common property shall be equally divided between the parties; and the court granting the decree, shall make such order for the division of the common property: see [322] Laws, §14, 5, 12. It seems, from this, to be beyond dispute, that a partition of the common .property is one of the direct results of a decree for divorce, and is part and parcel of the decree to be rendered, and consequently is necessarily one of the proper subjects of the action. How, then, can its introduction render the bill subject to the charge of multifariousness ? The bill would really not be perfect without it, for the purpose of obtaining the decree of division, as contemplated by the law. All pleading is to be taken most strongly against the pleader, and in the absence of an allegation that there is common property, the presumption would be, that there was none. So it is exceedingly proper for the information of the court, and for its proper action, to disclose specifically, if possible, in what the common property consists, its nature, and value; and as the one-half of it is equitably the right of the plaintiff, and to be so determined in this action, she may well make a party of any one - claiming an interest in it, in order that she may obtain a complete determination. See Laws, 527, sect. 13. 3d. The act concerning Divorce (see Laws, 371) declares, “No person shall be allowed to apply for a divorce, who has not been a resident of this State for a period of six months, immediately preceding such application.” In this case, it appears from the allegation of the bill, that the plaintiff’s husband arrived in this State in June, 1850, with the intention of making it his home, and actually carried that intention into effect, has continued to reside here ever since, and here, was the only place of his business. These facts constitute this place his domicil, and it is well settled that a married woman follows the domicil of her husband, because being under his authority, she has no right to choose one for herself. In contemplation of law, therefore, and as affecting all legal rights .and duties, the plaintiff must be considered as having been a resident of this State, continuously from the time her husband arrived here, and adopted it as his home.' Any other construction would often work severe injustice. Upon that contended for by the respondent, actual, personal inhabitancy, for six months immediately preceding the action, the oldest citizen •of the State might, from a temporary absence, be despoiled of [323] most important rights ; such a result was not contemplated by the framers of the law. Upon every ground, we are satisfied that the demurrer should have been overruled. Judgment reversed, and cause remanded.