Duffill v. Bartlett , 53 Nev. 228 ( 1931 )

It must be admitted from the outset that attorneys and courts in Nevada have assumed that a defendant in a divorce action has as strong and equitable a right to have the case tried in the county of his residence as any other defendant in any other character of action in personam. Experience will sustain the first contention, and supreme court of Nevada adjudications the second. In fact, this justifiable and equitable right in actions in personam is so generally recognized that an examination of the statutes of many of the states will disclose that in those jurisdictions a court will not even acquire original jurisdiction in such an action unless it be brought within the forum of which the defendant is a resident. It has likewise been very generally declared in many jurisdictions that a statute providing that an original action in personam shall be brought within the county of the defendant's residence, or that such an action shall be removed, upon proper application, to the county of the defendant's residence, is a mandatory and peremptory statute and permits of no discretion upon the part of the court. In so far as this principle applies to motions for change of venue upon the basis of the residence of the defendant, it is a well-recognized rule in Nevada. Williams v. Keller, 6 Nev. 141,144; Salsberry v. Connolly, 183 P. 391.

Under fair and liberal application of statutes and rules of procedure there seems to be no reason in law or equity why such a right should not be granted in a divorce case. It has been held that such a statute is remedial and should be liberally construed. Buck v. City of Eureka (Cal.), 31 P. 845.

The statute upon which the defendant relies for a removal of the cause is sec. 5014, Rev. Laws. There is no exception made in this statute to divorce cases or actions; and certainly, if the legislature intended such an exception it would have so declared. This statute, together with the statutes for a change of venue, must be urged in pari materia. If there should be a conflict, which is not conceded, the well-recognized rule of liberality should be applied, so that the defendant would not be denied the right to have the case tried within the forum of his residence.

The California cases on divorce fully support our contention that a change of place of trial to the county of defendant's residence is proper. Warner v. Warner, 34 P. 523; Usher v. Usher, 35 P. 8; Hennessy v. Nichol, 38 P. 649. The California change of venue statute is identical with ours.

This court, in a very early case, held that it is quite proper to remove an action for divorce to another county upon the proper showing that the convenience of the witnesses demand it. Sheckels v. Sheckels, 3 Nev. 404. This case expressly overrules the contention of plaintiff that under the divorce statute a decree of divorce may only be obtained in the county in which the case is filed. It also disposes of the contention that the original forum is the proper forum in which to try and dispose of the case, and that, therefore, under the change of venue laws, the case may not be removed. Under the plain terms of the divorce act, it must be admitted that the county where the plaintiff has resided for three months is a proper county, both for bringing the action and obtaining the divorce. Therefore, the provisions of sec. 5014, Rev. Laws, granting a change of venue in certain instances, cannot be invoked, as is here sought, on the ground that it "is not the proper county." The divorce act has carved out an exception from the general provisions, and has made the county of plaintiff's residence a proper county for obtaining the divorce. The law is settled that where a special act on divorce provides the venue for such actions, the general provisions of law on venue do not apply. 19 C.J. 36. This rule was applied in the case of State v. Superior Court (Wash.), 283 P. 689. This is, of course, an application of the rule that a special act controls against a general act. The situation is strengthened, too, by the fact that the 1927 amendment is the last expression on the subject by the legislature, whereas the general provisions on venue were an enactment of 1911. Hence, the statute on change of venue cannot be held applicable.

"The fact that by statute a certain action may be brought in a certain county gives no absolute right to a change of venue to such county if it may also properly be tried in the county where it is brought." 49 Cyc. 129.

In Nevada, under the 1927 divorce act, the plaintiff is permitted to obtain a divorce (and a trial must necessarily precede this obtaining) either in the county of his residence or in the county of defendant's residence. It can make no difference whether this venue for a particular class of cases is fixed by an amendment to the venue act itself, or by a special act which accomplishes the same result. It is submitted that the ruling of the supreme court of California in Gridley v. Fellows, 166 Cal. 765,138 P. 355, is determinative of the case at bar. That ruling was approved and followed in Rains v. Diamond Match Co., 171 Cal. 326,153 P. 239; Mansfield v. Pickwick Stages (Cal), 215 P. 389.

The legislature has provided the plaintiff with the option of fixing venue in different counties in cases other than divorce. Sec. 5011, sub. 3, and sec. 5012, sub. 1, Rev. Laws. In said sec. 5012, sub. 1, the word "brought" is used interchangeably with "shall be tried" in fixing venue. The same word "brought" is used in the 1927 divorce act, so it is apparent that even if the word "obtained" had not been used, it would still have given the plaintiff the option to fix the venue in the county of her residence. The added use of the word "obtained" simply placed it beyond question as a special venue provision.

The position here taken is that under the terms of the Nevada divorce act the plaintiff is given the right to have the case heard and determined in the county in which he shall have resided for three months or more, and that the defendant is not entitled to a change of venue to the county of his residence.

There is good authority that the venue of a divorce action cannot be changed under statutes not nearly as strong as our own. Puckett v. Puckett, 174 Ala. 315, 56 So. 585; Pfeuller v. Super. Ct., 14 Wn. 115, 44 P. 123.

OPINION From the petition and alternative writ of prohibition it is made to appear that Phyllis Chamberlin Duffill, on her complaint to the second judicial district court of the State of Nevada, in and for Washoe County, sought divorce and alimony from her husband, Albert Duffill, alleging in her complaint her residence in said county of Washoe for the period of three months before suit brought. Upon service of the summons and complaint, the defendant made demand in writing upon the plaintiff that the place of trial of the cause be changed to Clark County, his residence, and notified the plaintiff that he would, on the date specified, move therefor in open court, upon his affidavit of the fact accompanying the notice. Upon the hearing the court made an order that the demand and motion be refused and denied. Thereupon the defendant petitioned this court for a writ to prohibit respondents from continuing jurisdiction of the case and order its transfer to Clark County for trial. Upon consideration of the petition, an alternative writ was issued commanding the respondents to show cause why the prayer of the petition should not be granted. For return the respondents, through the attorney of record for Phyllis Chamberlin Duffill interposed a demurrer to the petition upon the general ground that it did not state facts sufficient to authorize the issuance of the writ.

1, 2. The petitioner bases his right to a change of the place of trial of the divorce action brought against him to the county of his residence upon section 72 of the civil practice act, section 5014 Rev. Laws, which provides: "In all other cases, the action shall be tried in the county in which the defendants, or any one of them, may reside at the commencement of the action; * * * subject, however, to the power of the court to change the place of trial, as provided in this act."

Section 73 of the act, section 5015 Rev. Laws, provides, in substance, that, if the county designated in the complaint be not the proper county, the court may, on motion, change the place of trial.

Section 5838 Rev. Laws, the civil practice act relating to divorce, as amended by the Stats. of 1927, p. 126, c. 96, reads as follows: "Divorce from the bonds of matrimony may be obtained, by complaint, under oath, to the district court of the county in which the cause therefor 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 cohabitated, or in which the plaintiff shall have resided three months before suit be brought, for the following causes. * * *"

We are of the opinion that section 5838, as amended, must be read in connection with section 72 of the practice act, heretofore quoted. Section 5838, as amended, is a limitation as to the place for the commencement of actions of divorce, but section 72 provides for the place of trial of personal actions generally. Hence there is no inconsistency in the different provisions. 9 Cal. Jur. 698. It will not do to say, as argued by counsel for respondents, that, because an action for divorce is required by statute to be brought in the county where the plaintiff shall have resided for three months before suit be brought, the action must be tried therein. The authorities hold that the defendant in a divorce action is entitled to a change of the place of trial to the county of his residence, notwithstanding a statute provides that actions for divorce shall be brought in the county where the plaintiff shall have resided for three months before the action be commenced. Warner v. Warner, 100 Cal. 11, 34 P. 523; Usher v. Usher, 4 Cal. Unrep. 521, 36 P. 8; Hockett v. Hockett, 34 S.D. 586,149 N.W. 550, Ann. Cas. 1917A, 938; 19 C.J. 36.

Being of the opinion that section 72 of the practice act upon which the petitioner bases his right to a change of the place of trial of the case in question applies to divorce actions, we conclude that the demurrer to the petition should be overruled and that the alternative writ issued thereon should be made permanent.

It is so ordered.