dissenting.
This Court said in Nichols v. Nichols, 128 N. C., 108: “It is necessary, in order that the Courts may take jurisdiction of the matter of divorce, that each and all of the requisites mentioned in the affidavit required by The Code, Sec. 1287, shall be set out and sworn to by the plaintiff.” The requirements are mandatory. The matter of divorce not only affects the parties immediately concerned, but the whole fabric of our social life; and the Courts, before they will act, must see that a strict case is before them to be heard, and that can not be seen under our statute unless all the matters required by Section 1287 of The Code are set out in the affidavit accompanying the complaint, as well as that the complaint should set out a good cause of action.” That part of the affidavit of the plaintiff in this case •concerning the plaintiff’s residence does not comply with our statute.. The language of the statute is: “And that complainant has been a resident of the State for two years next preceding the filing of the complaint.” That requirement is set out in plain words, and any confusion of its terms by the use of technical and complex phraseology ought to' be regarded by the Courts as an effort on the part of the pleader to allege residence by construction. That part of the affidavit in this case is as follows: “That the complainant became a resident more than two years next preceding this cause of action (italics mine), with her husband, at Liledown, in October, 1898, and she is advised that her legal residence has been there since that time.” That she became a resident of this State with her husband in October, 1898, and that she was a resident more than two years next preceding the cause of *339actiondoes not mean necessarily that she was a resident two years before the complaint was filed. She may have left the State after 1898 with the intention and purpose never to' return, and have remained an actual resident of another State until a time: within two years before the complaint was filed; and that is precisely what was affirmed in some of the papers and affidavits filed by the defendant on the motion for alimony. If it should turn out upon the trial of the action that such was the case, it was most prudent in the counsel who drew the affidavit that he prepared it so as to aver a legal conclusion as to affiant’s residence, instead of a direct affirmation that she had been a resident in fact for two years next preceding the filing of the complaint. There must ’ have been an actual residence in this State for two years next preceding the filing of the complaint before an action for divorce can be commenced. And by that is not meant that the plaintiff should have actually “had her physical body in this State for two years in order to confer jurisdiction upon the Courts in this State”- (in the brief of plaintiff’s counsel), but that she should have had her recognized domicile here, with the present intention to remain. The domicile of the husband is not for every purpose the domicile of the wife. The maxim that the domicile of the wife follows that of the husband can not be applied to oust the Court of its jurisdiction; neither, from parity of reason, can it give jurisdiction. Schonwald v. Schonwald, 55 N. C., 367. It is said in the brief of plaintiff’s attorneys that in Smith v. Morehead, 59 N. C., 360, this Court held that “the- domicile of the husband draws to it the domicile of the wife,” and the case of Schonwald v. Schonwald was cited in Smith v. Morehead “in support of that doctrine.” It is true that in Smith v. Morehead the Court cited the Schonwald case and approved of the reason given in that case for the enactment of the law concerning residence in divorce proceedings, which reason was as fol*340lows: “Tbe principal reason of tbe enactment was to prevent our Courts from being made tbe easy instruments for obtaining divorces by persons not residing in tbe State — to prevent citizens of other States from using our Courts for tbe purposes tbey could not attain in tbeir own; in other words, to prevent frauds in these matters.” That is, that non-residents of tbe State could not procure valid divorces in tbeir own State from a resident of this State without acquiring jurisdiction of tbe defendant by a personal service in tbe State of tbe non-resident; and therefore it is deemed fraudulent to allow non-residents of tbe State to' use' our Courts for tbeir convenience and to procure decrees that tbey could not have in tbe Courts of tbeir own State.”
In Schonwald’s case it was affirmed in tbe affidavit of tbe petitioner that “her husband has resided in 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 tbe domicile of her husband is her domicile, and therefore she has been a resident of this State for more than tbe last three years preceding tbe present time.” Tbe Court said there: “Tbe counsel who drew tbe petition was well apprised of tbe difficulty in tbe way of bis client, and therefore, instead of recklessly making her swear to a fact, has made her aver a conclusion which does not necessarily follow tbe fact.” There can be no difference between a plaintiff, in an action for a divorce, who has never resided in tbe State, and a plaintiff in such a suit who once resided here, but who bad left tbe State with tbe determination never to return, and who, upon returning, has not resided within tbe State for two years next preceding tbe filing of tbe complaint. It is a mistake to say that in Smith v. Morehead, supra, this Court said “that tbe domicile of tbe husband draws to' it the domicile of the wife,” in tbe sense that that declaration bad reference to non-resident wives. Tbe bill in equity in that case *341showed that the complainant was, and always bad been, a resident of Wake County, and that the defendant was a resident of Guilford County. The bill was filed in Wake County. Upon a demurrer to the bill for want of jurisdiction in the Court of Equity for the county of .Wake, the demurrer was sustained — the Court holding that as both plaintiff and defendant were residents of the State, the complainant, upon her marriage with the defendant, became a resident of Guil-ford County, the county in which her husband resided. The Court was only stating the general rule when it said in Smith v. Morehead, supra, that “the domicile of the husband draws to it the domicile of the wife,” for the Court further said there: “It was undoubtedly competent for the Legislature tc enact that the actual residence of the wife, out of the State, should not be considered as a legal residence with her husband, in the State, for the purpose of enabling her to sue him in the Courts of this State. That was the intent of th§ Legislature in the act to which reference is made, and the effect of the decision in Schonwald’s case is to' carry out that intent. In other respects, the rule remains unchanged, and where the parties reside in the State the residence of the husband still remains the residence of the wife.”
The amendment to the affidavit ought not to have been allowed. It was in the very words of the statute, but it did not show jurisdiction. It conferred jurisdiction, and that was not permissible. Gilliam v. Ins. Co., 121 N. C., 369.
My conclusion is that the Court had no jurisdiction of the action, because of the defective affidavit in the respect I have pointed out.