Moffatt v. Moffatt

Bryan, J., delivered the opinion of the Court. Murray, C. J., and Heydenfeldt, J., concurred.

This is an action brought by the appellant for the purpose of obtaining a divorce. The complaint alleged an abandonment and desertion [281]by the husband from his wife for over three years. The report of the referees, to whom the cause was referred establishes that fact.

There is no analogy between this cause and the case of Kashaw v. Kashaw, 3 Cal., 312, as the record seems to indicate.

In the case of Kashaw v. Kashaw, the wife followed the husband to this State, and having resided in the State less than six months, sued for a divorce. A question arose in that case as to domicil, it being held that the wife’s domicil should be considered in the case referred to, as that of her husband.

. In the cause before us there is evidence of a palpable desertion upon the part of the husband, and for a time defined by law as sufficient to afford to the wife a proper reason for an application for a divorce. The desertion of the husband entitles the wife to her own domicil.

We deem that the Court below erred in its ruling, and the judgment must be reversed, with costs.