(concurring). — I concur in the result, but not upon the grounds stated in the opinion of the majority. The appellant (defendant below) demurred to the amended complaint upon the ground that the court had no jurisdiction of the subject matter of the action, and upon the further ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled and exception reserved. I con*612cur in the view of the majority that “the complaint in an action for divorce should show affirmatively that the plaintiff has been a resident of the state for more than one year before the action is commenced,” and am, therefore, of the opinion that the demurrer should have been sustained.
The decision of the lower court upon the demurrer could not have been predicated upon proofs which had not then been taken. The only question involved was the sufficiency of the amended complaint, and it seems to me novel doctrine to hold that, in determining a question of that character resort may be had.to an original pleading, or to the evidence subsequently admitted upon the trial. Sec. 222, Code Proc. (2 Hill’s Code), provides that when: any pleading is amended before trial it shall be done by filing a new pleading, and “such amended pleading shall be complete in itself, without reference to the original or any preceding amended one;” and this I understand to be the general rule in code states. Upon its face the complaint was demurrable, and, a demurrer having been seasonably interposed, it should have been sustained. Not sustaining it was reversible error, which was not waived by any subsequent proceedings upon the part of the appellant.