Noble v. Noble

McBRIDE, C. J.

1, 2. Without going into the matter in detail we are of the opinion that the complaint states facts sufficient to constitute a cause of suit, and such of the testimony as has been brought here in the transcript supports the finding of the court. The jurisdictional question raised' seems- to depend upon a supposed distinction between the word “resident” as used in the complaint and the word “inhabitant” used in Section 509, L. O. L. In fact, the brief submitted by defendant seems to be predicated entirely upon this supposed distinction. We are of the opinion that whatever subtle distinction may be drawn in the definition of these terms by lexicographers, or in other statutes, they are synonymous so far as this 'statute is concerned. A reading of the section, as italicized below, makes this construction evident. It reads as follows:

“In a suit for the dissolution of the marriage contract, the plaintiff therein must be an inhabitant of *501 the state at the commencement of the suit, and for one year prior thereto; which residence shall be sufficient to give the court jurisdiction, without regard to the place where the marriage was solemnized or the cause of suit arose.”

The words are used interchangeably and it is not probable that the legislature ever had in mind a construction which might in some instances prevent a bona fide resident of the state from prosecuting a cause of suit for divorce, arising during his temporary or enforced physical absence from the state.

None of the cases cited from this state, when properly considered, sustains appellant’s contention. In Miller v. Miller, 67 Or. 359 ( 136 Pac. 15 ), it is true Justice Burnett quotes from an opinion of Justice R. S. Bean, in which the latter drew a distinction' between residence and domicile, saying that they were not synonymous, but in the main opinion Justice Burnett held that a person who had been absent in Idaho for three years, and who then returned to a former residence in Oregon, she, all the time during her absence, having had the intention to return, was such a resident and inhabitant of Oregon as to bring her within Section 509, L. O. L. In the opinion Mr. Justice Burnett treats the words “resident” and “inhabitant” as synonymous, as shown in the following quotation:

“ In determining the residence or permanent habitation of the plaintiff,” etc.

And again, quoting from a Wyoming decision:

“We think the rule is that the wife’s residence is that of her husband, save in exceptional cases,” etc.

To the writer the case seems strongly in favor of respondent’s position here.

*502 Reed’s Will, 48 Or. 500 ( 87 Pac. 763 ), cited by counsel for appellant, was not a case arising under the statute now under consideration. In it the court considered generally the relation of domicile to residence and the opinion has little bearing upon the present contention. , „

The next case cited by appellant is Parrish v. Parrish, 52 Or. 160 ( 96 Pac. 1066 ). The case'is not in point here. In that case the complaint, while alleging that the marriage was solemnized in this state and that the plaintiff resided in this state at the commencement of the suit, did not allege that he had so resided for a year next preceding the institution thereof; the distinction urged here was not considered and it is a fair inference from the whole opinion that, if plaintiff had alleged in that case what is pleaded as to residence in the instant case, it would have been held sufficient.

Holton v. Holton, 64 Or. 290 ( 129 Pac. 532 , 48 L. R. A. (N. S.) 779), is not in point. In that case the plaintiff sued for a divorce and made no allegation whatever in reference to his own residence. The plaintiff obtained a decree, and fifteen months afterward moved for leave to amend the complaint and findings of fact so as to conform to the proof showing his lawful residence in the state. The court, over defendant’s objection, having made such an order nunc pro tunc as of the date of the original decree, the defendant appealed here, where we held that the court, not having had jurisdiction in the first instance, coulcl not obtain it by such an order.

There is not a single primary definition of the term “residence” that does not include inhabitancy, and not a single primary definition of “inhabitant,” that does not in some way include residence. There are some refinements in the secondary definition of both *503 terms that introduce technical distinctions, but they have never been applied to statutes similar to this. This being the case, the use of the word “resident” instead of “inhabitant” did not in any event constitute an entire failure to state a jurisdictional fact, but at the most was merely an imperfect statement of it, and as such was subject to amendment at any time before the final submission of the cause.

3. The cause had not been finally submitted when the motion to amend was filed. It appears from the record that after the testimony had been taken and before the final decree was rendered, defendant’s counsel filed a motion which recited that, all the evidence having been offered and both parties having rested and the trial haying been concluded and the cause submitted, the defendant now moves the court for an order dismissing the cause for want of jurisdiction and specifying the grounds urged here. Notwithstanding the statement in the motion, that the cause had been submitted, it is self-evident that it has not been, as defendant was by his very motion contesting vigorously the right of the court to proceed further. In this state of the case plaintiff asked leave to amend by inserting the term “inhabitant,” which the court permitted, and thereafter decided the case in favor of plaintiff. While the amendment was unnecessary, it was one which the court had a right to permit in order to correct an expression which very technical persons might deem ambiguous.

The decree is affirmed. Affirmed.

Harris, Johns and Bennett, JJ., concur.