{
  "id": 8692916,
  "name": "SCHONWALD against SCHONWALD",
  "name_abbreviation": "Schonwald v. Schonwald",
  "decision_date": "1856-06",
  "docket_number": "",
  "first_page": "367",
  "last_page": "369",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Jones Eq. 367"
    },
    {
      "type": "official",
      "cite": "55 N.C. 367"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "14 Pick. Rep. 181",
      "category": "reporters:state",
      "reporter": "Pick.",
      "case_ids": [
        2019021
      ],
      "opinion_index": 0,
      "case_paths": [
        "/mass/31/0181-01"
      ]
    }
  ],
  "analysis": {
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    "ocr_confidence": 0.381,
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  "last_updated": "2023-07-14T15:28:57.092359+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "SCHONWALD against SCHONWALD."
    ],
    "opinions": [
      {
        "text": "Nash, C. J.\nThe whole question turns upon the wording of the statute of this State upon \u201c Divorces.\u201d Rev. Code, ch. 39, sec. J. That section has this provision : \u201cNor shall any person be entitled to sue, rani ess he or she shall have resided within the State three years, immediately preceding the exhibition of the petition.\u201d This requirement is expressed in very plain terms, and it would appear needs no exposition. To reside at a place is to dwell there permanently, or for a time. In her petition, the plaintiff states explicitly, and in so many words, that she had not so resided in this State ; \u201cyet,\u201d she says, \u201c she is advised that the domicil of her husband, is her domicil, and therefore, she has been a resident of this State for more than the three last years preceding the present time.\u201d The counsel who drew the petition was well apprised of the difficulty in the way of his client, and, therefore, instead of recklessly making her swear to a fact, has made her aver a conclusion which does not necessarily follow the fact. It is true, that for many purposes, the domicil of the husband is the domicil of the wife; but it is not so for every purpose. The maxim that the domicil of the wife follows that of the husband, cannot be applied to oust the Court of its jurisdiction ; neither, from parity of reason, can it give jurisdiction. 14 Pick. Rep. 181. If the construction contended for were to prevail, the policy of our act might, and would, be easily evaded. For instance, A and B are man and wife, residing in New York; the husband leaves his wife and comes to this State, where he lives for ten years in adultery with another woman ; the wife, without ever being in North Carolina, files her bill here for a divorce, and claims to do so under the allegation that her husband has been domiciled here for ten years ; could that be considered a compliance with the act ? The principle reason of the enactment was to prevent our Courts from being made the easy instruments of obtaining divorces by persons not residing in tho State \u2014 to prevent citizens of other States from using our Courts for purposes they could not attain in their own ; in other words, to prevent frauds in these matters.\nFrom the plaintiff\u2019s own showing, she was not entitled to file a bill in this State.\nThe Court, upon the trial of the issues, was. requested to charge the jury upon the question, of residence, that the orws of proving that the petitioner resided out of the State, lay on the defendant; this was rightly refused. Her residence in the State for the three years next preceding the filing of her petition, was a pre-requisite to her doing so. It is in the nature of a condition precedent. In the decree below there is no error.\nPee Cueiam. Bill dismissed.",
        "type": "majority",
        "author": "Nash, C. J."
      }
    ],
    "attorneys": [
      "W. A. Wright and Strange, for plaintiff.",
      "London, for defendant."
    ],
    "corrections": "",
    "head_matter": "SCHONWALD against SCHONWALD.\nThe three years residence, required by the Act of Assembly, ch. 29, sec. 7, Eev. Stat., of the petitioner in a suit for a divorce, previously to filing a petition, or bill, must be an actual residence, and when the wife sues, the legal maxim, that \u201cher domicil is that of her husband,\u201d will not avail in the stead of an actual residence.\nThis was an appeal from the Court of Equity of New-Hanover County, Judge Caldwell presiding.\nThe bill was filed by the plaintiff, alleging adultery on the part of the husband, and an abandonment of his wife; and the prayer is for a divorce and dissolution of the bonds of matrimony, &c.\nThe main question in the case arises upon the following allegation in the plaintiff\u2019s bill: \u201cAnd your petitioner further shows to your Honor, that her said husband has resided in the town of \"Wilmington for more than eight years, and although she has not been living with him three.years, in all, in this State, yet she is advised that the domicil of her husband is her domicil, and,, therefore, she has been resident of this State for more than the last three years preceding the present time.\u201d The defendant answered; replication taken; commissions and proofs.\nThe proper issues were made up and submitted to the jury; amongst the rest was the following: \u201c Has the plaintiff resided three years in this State, next before the filing of her said bill ?\u201d\nOn the trial of the issues, his Honor, amongst other instructions, told the jury that, according to admissions of the plaintiff, under oath, she had not resided in the State three years next before the filing of her bill, and no witness had been examined by her to prove an actual residence for three years, as required by the statute, though it was competent for her to have done so ; that the position taken by her counsel that the domicil of the wife was the domicil of the husband, was, in many cases, a fiction that gave way to the fact; and, in this case, an actual residence of three years must be made to appear.\nThe counsel moved the Court to charge that the onus of proving the domicil of the plaintiff out of the State, under the circumstances of the case, devolved on the defendant; but the Court declined so to charge. The plaintiff excepted.\nVerdict for the defendant. Judgment that the bill be dismissed. Appeal by the plaintiff.\nW. A. Wright and Strange, for plaintiff.\nLondon, for defendant."
  },
  "file_name": "0367-01",
  "first_page_order": 375,
  "last_page_order": 377
}