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Wade v. Wade

April 1918

MARGARET WADE, APPELLANT, V. BEN WADE, EMMA JONES, ALBERT WADE, AND J. O. SESSIONS, AS ADMINISTRATOR OF THE ESTATE OF JAMES WADE, DECEASED, RESPONDENTS.


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

George Springmeyer, for Appellant.

H. D. Danforth, for Respondents.

By the Court, Coleman, J.:

Margaret Wade brought suit in the district court of Washoe County to set aside a decree of divorce theretofore entered against her and in favor of her husband, James Wade. In her complaint she joined the administrator of the estate of her deceased husband (he having died after the decree of divorce had been entered) and the three children of the deceased. When the case was called for trial counsel for defendants objected to the introduction of any testimony in behalf of the plaintiff, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The objection was sustained by the court, and an order was entered dismissing the action. The sole question urged for our consideration is that the complaint states a cause of action, and hence the court erred.

1. Two theories are urged to sustain the assertion that the complaint is good. It is first insisted that, as it is alleged that James Wade was not a bona-fide resident of Washoe County, Nevada, at the time he brought the divorce action, the complaint contained a sufficient showing to sustain the contention that the court had no jurisdiction in the divorce proceedings, and hence the decree of divorce is null and void. We are unable to agree with this contention. The section of our statute upon which this question turns 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 cohabited, or in which the plaintiff shall have resided six months before suit be brought. * * *” (Stats. 1915, p. 26, sec.1.)

From a reading of this section, it is apparent that the district court of a county may acquire jurisdiction of divorce actions, as said in Tiedemann v. Tiedemann, 36 Nev. 494, 137 Pac. 824:

[41 Nev. 533, Page 536]

“When either of five different states of fact is shown to exist, to wit: (a) In which the cause therefor shall have accrued; (b) in which the defendant shall reside; (c) in which the defendant shall be found; (d) in which the plaintiff shall reside and the parties last cohabited; (e) in which the plaintiff shall have resided six months before the suit was brought”

—subject, however, to the objection that collusion between the parties existed, as pointed out in the Tiedemann case. It nowhere appears from the complaint in the case at bar that Margaret Wade, the plaintiff, who was the defendant in the divorce suit, was not a resident of Washoe County, and was not found and served with a summons therein in the divorce action. Of course, where residence on the part of the plaintiff is relied upon to give the court jurisdiction, such residence, in good faith, must be shown to exist; but under our statue the jurisdiction of the court may be made to depend upon other facts; and, as it is not shown by the allegations of the complaint that the jurisdiction of the court in the divorce action was not dependent upon some other fact than the residence of the plaintiff, James Wade, the complaint in this action failed to state a cause of action.

2. But it is said that, conceding that the contention that the court in the divorce action was without jurisdiction is without merit, the judgment should be reversed for the reason that the complaint is good, in that it charges a conspiracy on the part of James Wade, the plaintiff in the divorce action, and the attorney who acted for appellant in that action, to prevent appellant from making her defense in that suit, and that pursuant to that conspiracy the plaintiff in this suit was prevented from making her defense in the divorce suit. That portion of the complaint which undertakes to allege such conspiracy charges:

On information and belief that said James Wade and one ——, an attorney at law of Reno, Nevada, entered

[41 Nev. 533, Page 537]

into a fraudulent and collusive arrangement, whereby said attorney was to obtain authority from said Margaret Wade to act as her attorney in said divorce suit and was to fail to make proper defense to the suit and permit said plaintiff, James Wade, now deceased, to obtain a decree as sought in his complaint; that in pursuance of said fraudulent and collusive agreement between said attorney and said James Wade, now deceased, said attorney, on November 15, 1915, wrote this plaintiff at Port Ontario, New York, advising her that her husband, James Wade, had brought a divorce suit against her in the district court of Washoe County, State of Nevada, and offering her his services as an attorney in said case, free of charge, although the said attorney had not been asked for advice or opinion by said Margaret Wade, or by any one acting for her or in her behalf; that said attorney fraudulently conducted the defense of the defendant Margaret Wade, in the case of James Wade, plaintiff, v. Margaret Wade, defendant, in the Second judicial district court of the State of Nevada, in and for Washoe County, in this, that he did not in good faith present defendant's case to the court, and did not arrange for the appearance in court of defendant nor give her an opportunity to testify personally in court; that he misrepresented to the said defendant and to her attorney, Freelon J. Davis, of Pulaski, Oswego County, New York, the situation with regard to the divorce and what should be done or not done; that he connived and acted in collusion with the said James Wade, now deceased, for the obtaining of the said decree of divorce, and that ...


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