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Merritt v. Merritt

April 1917

EVELYN WOODS MERRITT, APPELLANT, V. FRED- ERICK CHARLES MERRITT, RESPONDENT.


Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

M. B. Moore, for Appellant.

Hoyt, Gibbons & French, Amici Curiae.

By the Court, McCarran, J.:

This is an appeal from a judgment rendered by the district court of the Second judicial district and from an order denying appellant's motion for a new trial.

The action in the lower court was one for divorce. The judgment and decree rendered by the court below was as follows:

“It is therefore ordered, adjudged and decreed that the court is without jurisdiction in said cause; and it is therefore ordered, adjudged and decreed that the plaintiff take nothing by this action.”

By this decree as entered and found in the records, it must be assumed that the court dismissed the proceedings for want of jurisdiction.

While it might appear that the court attempted to make findings on the merits of the case, it will not be presumed here on review that such was in reality the intention of the court, inasmuch as the court by its judgment and decree found itself without jurisdiction to entertain the cause. If the court was without jurisdiction, either by reason of the subject-matter of the action or by reason of the failure of the parties to bring themselves within that jurisdiction, it will not be contended, we apprehend, that the court had any power to determine the merits of the action. Nor do we assume, in view of the form of the judgment, that the court in reality attempted to determine the case on its merits.

In this proceeding, we are confronted with a situation

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that brings before us again the much-discussed divorce statute of our state.

Section 1 of appellant's complaint in the court below sets forth:

“That plaintiff resides in the city of Reno, county of Washoe, State of Nevada; and that said defendant is at the time of signing and filing of this complaint within the jurisdiction of this court and that service of the summons and other process may be made upon him in Washoe County, Nevada.”

Our divorce statute, enacted by the legislature of 1915, approved February 23, 1915, is in part as follows:

“Sec. 22. 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 cohabited, or in which the plaintiff shall have resided six months before suit be brought, for the following causes. * * *” (Stats. 1915, p. 26, amending Stats. 1861, c. 33.)

The power of our legislature to enact this statute, and others of similar nature, wherein that body, representing the people of the state, seeks to regulate marriage and divorce, will, we apprehend, not be questioned. As was said by Mr. Chief Justice Talbot in his concurring opinion in the case of Tiedemann v. Tiedemann, 36 Nev. 501: “Generally speaking, the marital status of the citizen, the age of consent, the manner in which marriage may be solemnized, the obligations it imposes affecting personal or property rights, the time, condition of residence and causes required for obtaining divorce, are all within the control of the state and subject to her laws as enacted by the legislature.”

We have here before us, then, the policy of our state applicable to the subject of divorce as that policy is framed and enacted by the legislature, the representatives of the people. The courts have neither the power

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nor the right to read into that statute anything not there found, nor to strike therefrom that which is there presented. The legislature in enacting this statute sought to prescribe certain jurisdictional prerequisites, in view of which or on the presentation of which the district courts of the state might take jurisdiction where parties sought to secure dissolution from the bonds of matrimony. Any one of five conditions presented in a verified complaint would, as we view this statute, be sufficient to give the district court jurisdiction. The district court might take jurisdiction: (1) If the cause of action therefor accrued in the county; (2) if the defendant resides in the county; (3) if the defendant may be found in the county; (4) if the plaintiff reside in the county, if such county be the one in which the parties last cohabited; (5) if the plaintiff reside in ...


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