McKim v. District Court of the Second Judicial District ex rel. County of Washoe , 33 Nev. 44 ( 1910 )

By the Court,

Norcross, C. J.:

An action for divorce was instituted by Margaret E. McKim, as plaintiff, against Smith H. McKim, as defendant, in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, before Honorable W. H. A. Pike, district judge. The said defendant, petitioner herein, through his attorney, James Glynn, served notice upon the plaintiff, Margaret E. McKim, that upon a time certain he would move the said district court for an order permitting him to appear specially in the action for the purposes of filing a plea in abatement, raising the question of the jurisdiction of the said district court to try the action for divorce, upon the ground that the plaintiff, the said Margaret E. McKim, was not at the time of the filing of her complaint, nor for six months immediately prior thereto, nor at all, a bona fide resident of the said county of Washoe or of the State of Nevada, as alleged in her complaint. The motion came on regularly to be heard and was denied by the court.

The said defendant has instituted this original proceeding in this court and prayed for an order requiring the respondent to appear and show cause why the plaintiff should not be permitted to file his said plea in abatement, and to appear specially for such purpose; and further, that the said district court be restrained from rendering a default in said action against said defendant, and from proceeding further to try the said action upon the merits thereof, or to render any judgment therein upon the merits, until the further order of this court.

It is not entirely clear from the face of the petition whether counsel regards this proceeding as one in mandamus to compel the trial court to permit him to appear specially and to file his plea in abatement, or one in prohibition to prohibit the court from further proceeding, until the defendant is permitted to file such plea. We think it may seriously be questioned whether the proceeding in this court may be regarded as an application for either of such writs. The petition, however, presents a question of considerable importance and we prefer to determine it upon the merits, rather than upon a mere technicality of procedure.

Our civil practice act provides:

"Sec. 37. All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act. (Comp. Laws, 3132.)

"Sec. 39. The only pleadings on the part of the plaintiff shall be the complaint, or demurrer to the defendant’s answer; and the only pleadings on the part of the defendant shall be the demurrer, or the answer. (Comp. Laws, 3133.)”

Section 40 of the civil practice act (Comp. Laws, 3135) enumerates the grounds of demurrer to the complaint.

Section 44 of the act (Comp. Laws, 3139) provides: "When any of the matters enumerated in section forty do not appear upon the face of the complaint, the objection may be taken by answer.”

Our practice act does not permit the filing of a plea in abatement as a pleading separate or distinct from the answer. Matters in abatement or in bar may only be set up in the answer.

Bliss on Code Pleadings, 345, says: "In common-law pleadings we have the rule that 'pleas must be pleaded in due order’; that is, the dilatory pleas must be first made and disposed of, to be followed by pleas in bar. The code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he elects to make must be embraced within it. Matter in abatement is as much a defense to the pending action as matter in bar, and to say that the defendant may reserve the latter until a trial shall have been had upon the issues in regard to the former would interpolate what is not in the statute — would be inconsistent with its plain and simple requirements. ”

Sutherland on Code Pleadings, vol. 1, sec. 459, says: "Pleas, by that name, are unknown to the code. The only pleadings, on the part of the defendant, are demurrer and answer. * * * ”

See, also, Preston v. Culbertson, 58 Cal. 198; Wells v. Patton, 50 Kan. 732, 33 Pac. 15.

The defendant, petitioner herein, may set up in his answer such defenses to plaintiff’s alleged cause of action as he may have.. It is well settled in states having a code procedure like ours, that the defendant only has two pleadings, a demurrer to the complaint, and an answer. Where the answer raises a question which is preliminary to the right of the court to determine the merits of the action, the better procedure would be for the trial court to determine it first before proceeding to consider the issues which go to the real merits of the action.

It is the duty of courts in divorce proceedings to see that the proof of residence is clear and convincing, and that a fraud is not being perpetrated upon the court. {Phillips v. Welch, 11 Nev. 187.) Having attempted to attack the validity of the plaintiff’s residence, although in a manner not recognized by our procedure, the trial court will doubtless permit the defendant a reasonable opportunity to file an answer in the case. A question as to the sufficiency of the evidence to establish residence upon the part of the complainant in a divorce proceeding must be taken by appeal, and not by original proceeding. (People v. Surrogate’s Court, 36 Hun, 218; People v. Surrogate of Putnam, 16 Abb. N. C. 241; Preston v. Trust Co., 94 Ky. 295, 22 S. W. 318; State v. Superior Court, 11 Wash. 111, 39 Pac. 818.)

This proceeding is dismissed.