Warner v. Warner

Harrison, J., concurring.

I think the order appealed from should be affirmed. In my opinion the amendment of 1891 to section 128 of the Civil Code was intended to prescribe a residence of three months in some particular county as a jurisdictional condition to be shown by the plaintiff before he should be entitled to a divorce, just as the previous requisite, which is also retained, of six months’ residence in the state is a jurisdictional condition to entertaining his application for a divorce. The right to a divorce is particularly a matter of statutory creation,, and the legislature has the same right to prescribe the conditions in procedure upon which a suit shall be instituted in its courts as it has to limit the causes for which the divorce may be granted.

This construction of the section is consistent with the provisions of the Code of Civil Procedure for changing the place of trial of the action after it has been brought, and gives full force to the several provisions of both codes.

No objection was made in the court below to the absence of a demand in Avriting for a change of the place of trial, and, as the bill of exceptions states that a “ notice in due form” of the motion therefor was filed by the defendant, it can be assumed here that the notice included a proper demand,