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Keenan v. Keenan

April 1917


Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.

Paul Pizey, for Appellant.

J. M. Lockhart, for Respondent.

By the Court, McCarran, C. J.:

This action was presumably brought under the statute of this state (section 2166, Revised Laws of Nevada, 1912), which we find to be as follows:

“In case of the dissolution of the marriage by decree of any court of competent jurisdiction, the community property must be equally divided between the parties, and the court granting the decree must make such order for the division of the community property, or the sale and equal distribution of the proceeds thereof, as the nature of the case may require; provided, that when the decree

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of divorce is rendered on the ground of adultery or extreme cruelty, the party found guilty thereof is only entitled to such portion of the community property as the court granting the decree may, in its discretion, from the facts in the case, deem just and allow; and such allowance shall be subject to revision on appeal in all respects, including the exercise of discretion, by the court below.”

From the record we learn that appellant and respondent were married at Los Angeles, Cal., January 6, 1902; that on August 31, 1914, pursuant to the suit and prayer of this appellant, a decree of divorce was rendered by the district court of Ada County, State of Idaho. At the time of the bringing of the action for divorce, this respondent, defendant in the divorce action, was in business and in possession of certain real and personal property at the town of East Ely, White Pine County, Nevada. Nothing in the record would indicate that he was ever a resident of Idaho. Summons in the divorce action commenced in Ada County, Idaho, was served on the defendant, respondent here, personally, at East Ely, White Pine County, Nevada. The record discloses that in the divorce action in Idaho this respondent made no appearance, either in person or by attorney, and made no attempt to plead or defend in such action, hence default was entered against him.

Some time after the decree of divorce was entered in the Idaho court, this action was commenced in the district court of White Pine County for a partition of the real and personal property “according to the respective rights of the parties interested therein,” and that the defendant Keenan, respondent here, be made to disclose and account for the personal property and the value thereof on hand on the 3d day of August, 1914, and the rents and profits of said real property and the profits of his business since that date. A demurrer raising the question of jurisdiction having been sustained by the trial court, appeal is taken to this court from such order.

[40 Nev. 351, Page 355]

1. We deem it unnecessary, in arriving at a conclusion here, to pass upon questions suggested as to the jurisdiction of the Idaho court to render the decree of divorce. The appellant here, plaintiff in the Idaho court, chose that forum to determine and terminate the marriage status existing between herself and the respondent. The record would indicate that at the time of the commencement of the action in Idaho the respondent was living in this state and was in possession of considerable property situated in this state. It appears from the decree of the Idaho court, copy of which is in the record, that no property of any nature belonging to respondent or in which he was at all interested was found in the State of Idaho. This fact must have been known to the wife prior to the commencement of her action for divorce, and we refrain from conjecture as to why such action was commenced in a jurisdiction other than that in which the husband resided and the community property, if it was community property, existed. Appellant here, however, having submitted her cause for divorce to the Idaho court, is entitled to the full force and effect of the Idaho decree in so far as the court rendering that decree had power to make it effective; but no more. As to whether that court had jurisdiction, in view of the allegations of the complaint for divorce, to determine the marriage status of the parties or to render a valid decree, is not a question with which we deem it necessary to deal. An action in divorce is generally regarded as proceedings in rem, and the Idaho court may have been, and probably was, warranted in entering its decree dissolving the marriage status, inasmuch as one of the parties was deemed to be properly before that court; but further than this the Idaho court could not, and, indeed, did not attempt to go. It had acquired no jurisdiction over either the person of the defendant in the divorce action, respondent here, or over the property. Whatever may be the effect of the decree of the Idaho court on the marriage status of respondent here, the great weight of authority holds

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that under such circumstances as those presented in the record no binding decree in personam could have been entered against the respondent. (Black on Judgments, vol. 2, sec. 933; Pennoyer v. Neff, 95 U. S. 714; Proctor v. Proctor, 215 Ill. 275.)

The proceedings here have not even the dignity of a personal judgment rendered against the respondent in a foreign state. Indeed, even if such were the case, under the rule announced by most eminent authority, such would be void, defendant in that action having been at the time of the rendition of the judgment a nonresident of the state in which the judgment was rendered, and he never having been brought ...

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