Kashaw v. Kashaw

California Supreme Court Oct 15, 1853Published

Before: Heydenfeldt

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Holding. The court held that a wife may sue her husband alone for divorce and partition of common property, and that a wife's legal domicile for residency requirements follows that of her husband.

Issues

Does the wife have the legal capacity to sue her husband when other parties are joined?
Is a claim for partition of common property improperly joined with a divorce action?
Does a wife satisfy the six-month residency requirement for divorce if her husband has resided in the state for that period?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The test of the wife’s capacity to sue, is simply to ascertain if the suit is between her and her husband”

“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”

Synopsis

The Practice Act permits the wife to sue alone, when the action is between her self and her husband. If'it is necessary to introduce other parties, their introduction cannot affect her right.

The object of the act is to take away the necessity of suing by prochein ami, and being a remedial statute, must be beneficially construed.

Upon the dissolution of a marriage by a court of competent jurisdiction, the act, in relation to husband and wife, directs that the common property shall be equally divided between the parties, and that the court granting the decree shall make such order for the division thereof. Held, 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 one of the proper subjects of the action.

In the absence of an allegation that there is common property, the presumption would be that there was none.

And it is proper to declare, for the information of the court, in what the common property consists, its nature, and value.

The wife, in a suit for divorce, may make a party of any one claiming an interest in the common property.

Where the husband had been resident of this State since 1850, and had his domicil in San Francisco, and the wife followed him and arrived here, and commenced this suit before six months had elapsed after her arrival: Held, that the domicil of the husband is the domicil of the wife, and that in contemplation of law, the plaintiff must be considered as having been a resident of this State continuously, from the time her husband arrived here.

Heydenfeldt, Justice, delivered the opinion of the court. Murray, Chief Justice, concurred.

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 'proc'hein 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 [322]Laws, §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, sect. 13.

Kashaw v. Kashaw

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