The rule that enables a feme covert to sue, requires that she shall sue by her next friend. (Mill's Eq. Pl. 5 notes; Miltford, Pl. 135; Cooper, 163; Wood v. Wood, 8 Wend. 357; Coit v. Coit, 4 How. Pr. 232; and 6 Ib. 53.)
But it is contended that a provision of the statutes of California dispenses with the next friend. The statute provides, sec. 7, " Where a married woman is a party, her husband shall be joined with her; " except that, 2d, When the action is between herself and her husband, she may sue and be sued alone. (Statute 1851, p. 52.) The rule is general; the cases excepted, special, and confined to a class. The case of Coit v. Coit, cited above, and in 6 How. Pr. 53, is an adjudication on a like statute, and the reasoning unanswerable.
The word alone in the act, means more than the affirmance of a general rule. She could be sued alone, and could therefore answer " in her own name." (3 Atk. 478.) But if necessary to secure the husband against the " clamor" of the wife, how much more so if thirdparties may be made co-defendants with him? If plaintiff fails, who is to indemnify Baldwin, Bartlett, and Vance, for their costs, etc.?
But the case is not within the exception. It is not an action between the husband and wife, but it is an action between Mary Kashaw, a married woman, and Baldwin et al., neither of whom is her husband. It is said, " they became necessary parties by their own act, and cannot complain that they have not a next friend as security for costs." They can show that this conclusion is not warranted by the facts; but they claim to be secured against the expense in the trial of this issue.
To sue for a divorce requires a residence in the plaintiff of six months.
The complaint sets forth their marriage, residence together in different places, and in New York till 1850, whence they removed to San Francisco, intending to make it their place of residence, having abandoned New York; he, for want of means to pay expenses of both, leaving her to follow him, when he could acquire and remit funds from their new home. That he arrived in San Francisco in June, 1850, and continued and had his domicil there until the institution of this suit. That from thetime he established himself in this State, it became hers, as his lawful wife, to wit, from June, 1850. As a question of pleading this is bad: the averment of a fact must be made clearly, distinctly, and without argumentation. The Court can take nothing by inference, nor can it receive the evidence of the fact for the fact itself. The material averment of residence is nowhere made, and the Court will not search to see if that may be inferred which it was the duty of the pleader to have averred distinctly. If any fact is to be gathered from the complaint, it is that the plaintiff is not now, nor has she ever been, in this State.
Can the Court infer from the complaint that the plaintiff has been a resident of this State for six months before this suit was brought? The appellant says, the husband having his domicil here, the wife (though actually absent) has resided here during that time.
" Domicil" and " residence" do not mean the same thing, if the appellant is right as to the former. To be a resident of any place, one must be actually in the place: actual presence is necessary. (2 Burrill's Law Dictionary, 891.) " Resident" (2 Kent, 430, n.) and the words, " immediately precedingsuch application, " in the act, shows this intention of the Legislature. To sustain the case, it will be necessary to decide that one may be a resident without actual presence, indeed, without ever having been in the State.
Residence cannot be made to depend upon intention.
The complaint seeks to recover from Baldwin, Bartlett, and Vance, certain specific real estate, and this claim is joined with an action for a divorce. The 64th section of the Practice Act defines what actions may be joined, and under what circumstances. The 7th subdivision of the section says, " That the causes of action so united, shall all belong to one of these classes, and shall affect all the classes to the action ." The defendants, Baldwin, Bartlett, and Vance, could not be affected by a decree of divorce; but they are interested in real estate, and may be affected by a decision on that question. It is therefore clear the complaint contains inconsistent causes of action, not equally affecting all the defendants; nor could they be joined under any system of equity pleading. But the statute controls the courts of equity, as well as those of common law. (See the 64th section, cited above.)
Theobject of pleading is to present an issue, clear, simple, and precise, so as to show the point to be decided. The material facts must be stated, not left to inference, from the circumstances which tend to make them out; therefore, must be such as to affect all the parties and the pleadings stated, without argument or illustration. These rules are not abolished by our statutes; which, on the contrary, by abolishing technicalities, requires of the pleader greater simplicity, precision, and certainty, in presenting his case. If these principles be applied to the original and amended complaints in this case, no error will be found in the decision of the Court below.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
This was a bill filed for a divorce, and a partition of the common property. A demurrer was sustained, on the grounds:
1st. That the wife had no legal capacity to sue.
2d. That several causes of action are improperly joined.
3d. That she had not resided in the State for six months preceding the commencement of the suit, and is therefore not entitled to sue for a divorce.
Our Practice Act permits the wife to sue alone, when the action is between herself and her husband. (Laws, 520.) It is said, however, that there are other parties defendant to this action, and, therefore, it is not a suit between her and her husband only. It is a sufficient answer to this objection, that the statute does not use the word " only." The test of the wife's capacity to sue, is simply to ascertain if the suit is between her and her husband, and this being found in the affirmative, the necessity of introducing other parties cannot affect her right. The object of the act is to take away the necessity of the old form of suing by prochein ami, and being a remedial statute, it must be beneficially construed.
2d. The act in relation to Husband and Wife, declares that in case of the dissolution of the marriage by a court of competent jurisdiction, the common property shall be equally divided between the parties; and the Court granting the decree, shall make such order for the division of the common property. (See Laws, sec. 14, 5, 12.) It seems, from this, to be beyond dispute, that a partition of the common property is one of the direct results of a decree for divorce, and is part and parcel of the decree to be rendered, and consequently is necessarily one of the proper subjects of the action. How, then, can its introduction render the bill subject to the charge of multifariousness? The bill would really not be perfect without it, for the purpose of obtaining the decree of division, as contemplated by the law. All pleading is to be taken most strongly against the pleader, and in the absence of an allegation that there is common property, the presumption would be, that there was none. So it is exceedingly proper for the information of the Court, and for its proper action, to disclose specifically, if possible, in what the common property consists, its nature, and value; and as the one-half of it is equitably the right of the plaintiff, and to be so determined in this action, she may well make a party of any one claiming an interest in it, in order that she may obtain a complete determination. (See Laws, 527, sec. 13.)
3d. The act concerning Divorce (see Laws, 371) declares, " No person shall be allowed to apply for a divorce, who has not been a resident of this State for a period of six months immediately preceding such application."
In this case, it appears from the allegation of the bill, that the plaintiff's husband arrived in this State in June, 1850, with the intention of making it his home, and actually carried that intention into effect; has continued to reside here ever since, and here was the only place of his business. These facts constitute this place his domicil, and it is well settled that a married woman follows the domicil of her husband, because being under his authority, she has no right to choose one for herself.
In contemplation of law, therefore, and as affecting all legal rights and duties, the plaintiff must be considered as having been a resident of this State continuously from the time her husband arrived here, and adopted it as his home. Any other construction would often work severe injustice. Upon that contended for by the respondent, actual, personal inhabitancy, for six months immediately preceding the action, the oldest citizen of the State might, from a temporary absence, be despoiled of most important rights. Such a result was not contemplated by the framers of the law.
Upon every ground, we are satisfied that the demurrer should have been overruled.
Judgment reversed, and cause remanded.