TIEDEMANN VS. TIEDEMANN (DIVORCE)

Key holdings

Practitioner summary

Second appeal in the case (see 35 Nev. 259, reversing an order quashing service): appeal by the plaintiff wife from a judgment dismissing her divorce action on an order sustaining the defendant's demurrer for want of jurisdiction, the complaint alleging plaintiff's residence in Carson City and that defendant 'is now within, and can be found in' Ormsby County, where he was personally served the day of filing. Norcross, J., construed sec. 22 of the 1861 marriage and divorce act (Rev. Laws 5838) as establishing five alternative jurisdictional bases: (a) county where the cause accrued; (b) defendant's residence; (c) where defendant is found; (d) plaintiff's residence if the county of last cohabitation; (e) plaintiff's six-month residence. The six-month requirement attaches only to the last; the act of 1911 (Rev. Laws 3609) affects only the character of residence where residence is essential. Distinguishing Fleming v. Fleming, 36 Nev. 135 (plaintiff relying solely on own residence), the court held 'found' is used in contradistinction to 'reside' and carries its service-of-process meaning: personal service on the defendant within the county (Stats. 1861, p. 318). The complaint's allegations of plaintiff's residence plus defendant found and served in the county invested the court with jurisdiction of subject matter and parties; no collusion appeared. The 1913 amendment (Stats. 1913, p. 10, effective January 1, 1914, adding a one-year bona fide state residence requirement where the parties were not both bona fide residents when the cause accrued) did not reach this earlier action. Talbot, C.J., concurred (legislative plenary power over divorce; personal service equivalent to appearance under Rev. Laws 5034; Cheever v. Wilson; Atherton; Haddock discussed); McCarran, J., dissented. Reversed; order sustaining demurrer set aside, with leave to defendant to answer.

In plain language

Gertrude Eleanor Tiedemann filed for divorce in Ormsby County on August 16, 1912, alleging that she was a resident of Carson City and that her husband was then within Ormsby County and could be found there; he was personally served the same day. After an earlier round in which the Supreme Court reinstated the service (35 Nev. 259), the husband demurred, arguing the court had no jurisdiction because neither party had resided in the county for six months. The trial court sustained the demurrer and dismissed the case, and the wife appealed. The Nevada Supreme Court reversed. The 1861 divorce statute lists five alternative places where a divorce suit may be brought, including the county in which the defendant shall 'be found.' The six-month residence requirement applies only when the plaintiff relies solely on her own residence. Because the wife alleged her own Nevada residence AND that the defendant could be found - and he was actually served - in Ormsby County, the court had jurisdiction. 'Found' means what it means in service-of-process statutes: the county where the defendant can be personally served. The court noted there was no claim of collusion, and that a 1913 amendment adding a one-year state residence requirement in some cases did not apply to this earlier-filed suit. Chief Justice Talbot concurred at length; Justice McCarran dissented.