OPINION We shall supplement the statement of the facts in order that there may be no misunderstanding of the questions of law presented in argument for a rehearing.
In October, 1922, Nathan A. Confer commenced an action in the district court for Washoe County against Emma E. Confer for a divorce, upon the ground of extreme cruelty, alleging residence in that county for a period of six months before the filing of his complaint. Summons and copy of the complaint were served personally on the defendant at her place of residence in Pennsylvania. She came to Reno, Washoe County, Nevada, in response to said summons, appeared in the action, and filed an answer to the complaint. *Page 27 Subsequently she filed an amended answer, in which she alleged, in paragraph II thereof, as follows:
"Answering the allegations contained in paragraph II of plaintiff's complaint, defendant alleges that she has no knowledge of the matters and things in said paragraph alleged, and denies the same upon information and belief, and in this connection defendant avers that plaintiff, on or about the 18th day of April, 1922, without any cause or provocation upon her part, and without informing defendant of his purpose, suddenly and mysteriously left the home of plaintiff and defendant in the borough of Hamburg, county of Berks, State of Pennsylvania, and that plaintiff's whereabouts remained unknown to defendant until service of process in the above-entitled action was made upon her in the State of Pennsylvania, on or about the 31st day of October, 1922."
Paragraph II of the complaint reads as follows:
"That the plaintiff is now, was, and has been an actual resident of the city of Reno, county of Washoe, State of Nevada, for the period of more than six months immediately preceding the commencement of this action."
In her answer, the defendant admitted and denied portions of the complaint, and for further and separate defense, and by way of cross-complaint, alleged, in substance, that the plaintiff, on or about the 18th day of April, 1922, without justifiable cause, willfully and without the consent of the defendant, and against her will, deserted the defendant. She alleged that plaintiff was the owner of property, consisting of real estate in the States of Pennsylvania and New Jersey, of the approximate value of $95,000, and was the owner of personal property of the approximate value of $25,000. She alleged that she was without any means of support, excepting the sum of $1,500 invested in Liberty bonds, and had no income excepting the interest received from said bonds; that the sum of $250 was a reasonable sum to be allowed and paid monthly by the plaintiff to the defendant for her permanent support and maintenance. The defendant prayed judgment that the plaintiff take *Page 28 nothing by his action, and that the defendant have judgment against the plaintiff for the sum of $250 per month as and for her separate maintenance and support, and for such other and further equitable relief as might be just and equitable in the premises. The plaintiff made reply to the answer and cross-complaint. After a hearing upon the pleadings and evidence, the trial court found, among other of its findings, as follows:
"The court further finds that plaintiff is now, was, and has been an actual resident of the city of Reno, county of Washoe, State of Nevada, for a period of more than six months immediately preceding the commencement of this action, and that plaintiff for more than six months next before filing his complaint, and before the commencement of said action, was physically and corporeally present in Washoe County, Nevada, in which county he had his only home, place of residence, and domicile."
Upon its findings of fact and conclusions of law, the court, on the 18th day of July, 1923, rendered judgment in favor of the plaintiff for divorce, and adjudged and decreed that the plaintiff pay to the defendant the sum of $50 per month for her permanent support and maintenance and as alimony; the court reserving the right to increase or decrease said sum upon proper application of either party.
In the answer of respondents, it is alleged and not denied that the said sum of $50 per month has been paid to the defendant and accepted by her as permanent alimony in accordance with said judgment and decree.
On the 30th day of October, 1924, Emma E. Confer filed suit against Nathan A. Confer in the district court for Washoe County, to have the decree of divorce granted Nathan A. Confer vacated and annulled. Upon her verified complaint and affidavit, setting forth the nonresidence of the defendant, the plaintiff made application to the Honorable George A. Bartlett, judge of said court, for an order for service of the summons by its publication. The court declined to grant the order. Thereupon Emma E. Confer applied to this court *Page 29 for and obtained an alternative writ of mandamus commanding the respondent court to make said order, or show cause before this court why it had not done so.
In our former opinion, the action of the respondent, in refusing to grant the order, was upheld, and the petition for the writ denied, upon the ground that the complaint of Emma E. Confer did not state a valid cause of action in equity to annul said decree of divorce. The question now presented for decision is, was our decision right or was it wrong? We shall not reiterate the facts stated in the complaint to have the decree annulled, but refer to our opinion, filed on April 6, 1925, and reported in234 P. 688.
1. The substance of the argument in the petition for rehearing is that this court, in declining to issue the writ of mandamus, has, in effect, decided that a nonresident who could not obtain a divorce in the state of his real residence can establish a temporary residence in Nevada for the period of six months and obtain a divorce against his nonresident wife. It is contended that public policy and the vindication of the law of this state demand that our former decision be righted, if for no other reason than to preserve the integrity of our courts, and thus suppress the evil of granting divorces to those who come into this jurisdiction from all parts of the globe for the sole purpose of obtaining them.
If there were anything in our former opinion, or in any prior opinion of this court, holding or intimating that it is permissible under the law of this state for a person who could not obtain a divorce in the state or country of his or her real residence to establish a temporary residence in Nevada and obtain a divorce, we should gladly overrule the decision.
The object of the legislature in requiring a residence of six months in this state before a divorce can be obtained is apparent. Its purpose is to prevent a fraud upon the law of the state by nonresidents, and is in aid of restricting the dissolution of the marriage status except at the suit of a resident of this state. Hiner v. Hiner, 153 Cal. 256, 94 P. 1044. Six months' residence *Page 30 stands upon the same footing in law as residence for any longer period required for divorce. Residence within the meaning of the statute is discussed and defined in the following cases: Fleming v. Fleming, 36 Nev. 135, 134 P. 445; Worthington v. District Court, 37 Nev. 214, 142 P. 230, L.R.A. 1916A, 696, Ann. Cas. 1916E, 1097; Presson v. Presson, 38 Nev. 203, 147 P. 1081; Aspinwall v. Aspinwall, 40 Nev. 55, 184 P. 810; Blakeslee v. Blakeslee, 41 Nev. 243, 168 P. 950; Walker v. Walker, 45 Nev. 105,198 P. 433.
It is pointed out in argument that it is the duty of this court, in view of the decisions cited, to construe the statute in respect to residence in divorce actions according to its own light, and not be controlled by the decisions of other courts, criticizing in this connection the cases cited in our opinion. Clark v. Clark, 64 Mont. 386, 210 P. 93, and Orr v. Orr, 75 Or. 137, 144 P. 753, 146 P. 964. We attribute the argument to counsels' misconception of the statute and the point decided in our former opinion, namely, that fraud in alleging or establishing required residence in a divorce action, being a jurisdictional fact, is not available to annul the decree.
It is strenuously insisted that where residence constitutes the basis of jurisdiction, and divorce is obtained by the commission of fraud upon the jurisdiction of the court, it is the duty of the court to vindicate the statute in respect to residence in divorce actions as construed and interpreted in the Nevada cases upon that subject. In answer to this proposition, it is enough to say that the respondent court, in granting a divorce to Nathan A. Confer, actually found that it had jurisdiction of the parties and the subject matter. While the evidence upon which this finding was made is not before us, Nathan A. Confer must have satisfied the court that he was a resident of Washoe County, and we cannot presume that the court failed of its duty in respect to the facts pertaining to that issue.
2. In our former opinion it is pointed out that the allegations in the complaint for divorce in regard to residence stand upon the same footing as any other *Page 31 allegation of facts showing the right to a divorce. 9 Cal. Jur. sec. 61, p. 695. Mrs. Confer appeared in said action and contested her husband's right to a divorce, and sought affirmative relief. More than a year after the entering of the decree, and after having presumably accepted its benefits, she seeks to have the same annulled, upon the ground of fraud perpetrated by her husband upon the jurisdiction of the court. We are of opinion that the authorities are decidedly against the proposition, and that courts cannot be used in that way. Residence being a jurisdictional fact, the findings thereon are just as conclusive as findings upon any other issue of fact in the case.
In the case of Crane v. Deacon (Mo. Sup.) 253 S.W. 1068, the court said:
"The finding of such facts is res adjudicata unless there is a difference between the finding of jurisdictional facts and any other facts necessary to make out a case. The rule, to which we can find no exception, is that, where it is necessary for a court to find certain facts in pais which give it jurisdiction, the finding of such facts is res adjudicata between the parties, the same as any other facts constituting a cause of action. The courts of this state, in a collateral attack upon a judgment, have made no difference between the facts which confer jurisdiction and any other facts to be determined in the case [citing cases]. Likewise there is no difference in a direct attack upon a judgment between jurisdictional facts and other facts necessary to be proven in support of the cause of action" — citing Bigelow on Estoppel (6th ed.) p. 177; 2 Black on Judgments, sec. 615.
Continuing, the court said:
"This court has applied that doctrine to decrees for divorce. In the case of Richardson v. Stowe, 102 Mo. 33, 14 S.W. 810, a suit to set aside a decree of divorce, it was held that, if the cause of action was vitiated by fraud, it is a defense which must be interposed, and, unless its interposition is prevented by fraud, it cannot be asserted to avoid the judgment. This court in that *Page 32 case said: * * * `The decree of divorce was a final determination of every fact set out in the petition in this case as a cause for its vacation, and was a complete answer to it.'"
Continuing, the court said:
"The alleged facts as to jurisdiction were in issue in the divorce case involved here. The defendant was served with a copy of the petition; he appeared in court when the case was tried; he employed an attorney to represent him; the facts were adjudicated by the court as conclusively as any other facts in any case where issue is joined and determined by the court."
The Supreme Court of Missouri has thus emphasized the conclusiveness of the finding of the jurisdictional facts where the party affected had an opportunity to contest them at the trial. The decision is in accord with our former opinion herein in respect to the decree being vitiated by fraud.
It is argued, on the part of Mrs. Confer, that she alleged in her complaint to have the decree annulled that she was without knowledge of the character of her husband's residence at the time of trial; that she was ignorant of his bona fide intentions as to residence; that the facts showing the falsity of the averment in his complaint as to residence were not known to her at the time of trial — yet this court in the face of such averments, erroneously imputed to Mrs. Confer knowledge of such facts, and, in effect, held that she was an actor in the fraud perpetrated upon the court. We stated in the opinion that:
"The allegation of residence was denied by the defendant (petitioner), upon her information and belief. No one, except the plaintiff, knew better than the defendant, petitioner herein, whether the allegation was true or not. The obligation devolved upon her to give the court all the information which she now shows she possessed concerning the fact of the plaintiff's residence."
It is not within the range of reason to assume that when Mrs. Confer denied the fact of plaintiff's residence *Page 33 upon information and belief she was not advised of what constituted residence, and that residence was a jurisdictional fact to be established by clear and convincing proof. It certainly devolved upon her to at least give the court the benefit of her information, and also the grounds for her belief that Mr. Confer was not a resident of Washoe County. We adhere to the statement made in our former opinion.
3. It is insisted that the demurrer to the petition for the writ of mandamus admits that Nathan A. Confer came to Reno, Nevada, for the express purpose of obtaining a divorce, and that, after establishing a temporary residence in a hotel in the city of Reno for the period of six months, and after obtaining his decree of divorce, he immediately left Nevada and returned to his real residence in the State of Pennsylvania. Hence it is argued that the doctrine of extrinsic fraud has no application. The statute which prescribes six months' residence to obtain a divorce does not require that the plaintiff reside in this state for any specified length of time if he be a bona fide resident for the required period of six months prior to the filing of the complaint. Nathan A. Confer had a legal right, in good faith, to change his place of residence, and the mere showing that he returned to Pennsylvania instead of going to some other state is, in view of his former residence in Pennsylvania, material only as tending to throw light upon his intentions at the time he claimed to have become a resident of Washoe County.
The court, in Holmes v. Holmes, 189 Iowa, 256, 176 N.W. 691, in commenting upon a similar situation, said:
"The court passed upon the question of the good faith of her intentions in the divorce suit, and held that she was a bona fide resident thereof. That she returned to Minneapolis and resumed her former position, shortly after the decree was entered, may tend, to some extent, to indicate that the purpose of her coming to Iowa was to obtain a divorce, but is wholly insufficient alone to justify the court in setting aside the judgment for want *Page 34 of jurisdiction to enter same, or upon the ground of fraud."
In Whise v. Whise, 36 Nev. 16, 131 P. 967, 44 L.R.A. (N.S.) 689, the court uses the following language:
"The fact, if it be a fact, that Whise moved from the State of Nevada after the rendition of a judgment and the filing of the decree, could not, we think, be considered as newly discovered evidence that would affect the material issues of the case. Residence is a matter of intention, and has been generally so held. Both parties to this action had submitted themselves to the jurisdiction of the trial court, in which court there had been a trial and determination of all the issues, and at the conclusion of the controversy either party had the right to go wherever he or she saw fit."
The facts stated in the petitioner's complaint impel us to the conclusion that the complaint fails to state a cause of action to annul the decree of divorce for want of jurisdiction to enter the same, or upon the ground of fraud.
We therefore deny the petition for rehearing, and adhere to our former opinion and decision. *Page 35