MOTION TO STRIKE
Mr. Smith filed a motion to strike the alternative prayer contained in the pleading above; and alleged: (a) that the last matrimonial domicile of the parties was in the State of Pennsylvania; (b) that under the law of Pennsylvania, permanent alimony could not be awarded; and (c) that under the law of Pennsylvania, Mrs. Smith was not entitled to an interest in Mr. Smith’s property.2 Mr. Smith claimed that under Act 348 of 1953 of the Arkansas Legislature, Mrs. Smith — even if the injured party — could receive only such alimony and property rights as were allowed her by the law of the last matrimonial domicile of the parties; and that under the law of Pennsylvania, Mrs. Smith was not entitled to any permanent alimony or property rights.
IV.
RESPONSE
Mrs. Smith resisted the Motion to Strike and claimed that said Act 348 of the Arkansas Legislature of 1953 was unconstitutional for several reasons,3 among others being the claim that Section 3 of said Act violated the Equal Protection Clause of the 14th Amendment to the United States Constitution.
THE CHANCERY ORDER
AVith the pleadings in the status listed, the Chancery Court heard the arguments on the Motion to Strike (no evidence was heard), and in refusing the Motion, delivered a written opinion showing much study and erudition, and held that Section 3 of said Act 348 of 1953 was unconstitutional. Thereupon, Mr. Smith gave notice of appeal to this Court, pursuant to Act 555 of 1953 and the concluding paragraph of § 27-2101 Ark. Stats. Excellent briefs have been filed by both sides in this Court on the constitutional question. The trial of the divorce action in the Chancery Court is awaiting the outcome of this appeal.
OUR OPINION
We reach the conclusion that the Trial Court should not have proceeded to decide either questions of property rights or constitutional issues until the case had been first tried as to (a) jurisdiction of the parties; (b) cause of action; and (c) which spouse was the injured party.
A divorce action is one affecting the status of the parties,4 and the State is a silent third party in every divorce action. Every court should be firmly sure of its jurisdiction before undertaking to determine the status of the parties. Under our American system, in which each of 48 states has divorce power, the decisions of the United States Supreme Court show instances in which all too frequently a divorce decree rendered in one State has been successfully attacked in another State because of lack of jurisdiction of the first State.5 Bona fide residence of the plaintiff is an essential to the jurisdiction of an Arkansas court to entertain a suit for divorce; and bona fide residence means domicile. Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585; Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124, 27 A. L. R. 2d 861.
In the case at bar, the complaint — previously copied in full except for caption and signature — did not allege that the plaintiff, Mr. Smith, was a resident of this State. Sec. 34-1208 Ark. Stats, says that° residence need not be alleged, but must be proved. Certainly, in the light of this Statute, the plaintiff in this instance should have proved bona fide residence before expecting the Trial Court to determine other questions.
Our Statute on property rights in divorce actions is § 34-1214 Ark. Stats. Prior to Act 348 of 1953 and also in the 1953 Act, the Statute provides that “In every final judgment for divorce, . . . the Court shall adjudicate the property rights. Those prefatory words — “In every final judgment for divorce”' — mean something: they mean that it is not until the Court makes the final judgment in the divorce action that property rights are to be adjudicated. Those prefatory words mean that it is not until questions have been settled in regard to jurisdiction of the parties, the cause of action, and the determination of which is the injured party — it is not until that stage of the proceedings — that the Court determines property rights and decides for or against permanent alimony. Yet in the case at bar, the parties persuaded the Trial Court to hurdle all these essentials of (a) jurisdiction, (b) cause of action, and (c) determination as to injured party, and pass on a constitutional question involving property rights and alimony, entirely outside of the orderly course of procedure. To use a well understood and homely expression, the parties persuaded the Trial Court to “put the cart before the horse”.
Why is it important that jurisdiction, cause of action, and determination of which spouse is the injured party, should first be made? The answer is simple. Suppose we should decide the constitutional question presented and the plaintiff should be displeased with the decision. Then he could dismiss his cause of action and go elsewhere, and we would have decided a case that one party could render moot. Suppose on trial the plaintiff failed to prove a cause of action, or that the defendant, Mrs. Smith, should be found to be the guilty party: then in either such event, a decision on the constitutional question of property rights would become dictum and the adjudication would be moot. It has long been the rule in this jurisdiction that we do not pass on constitutional questions except where such decision is necessary to the determination of the case. Holt v. Howard, 206 Ark. 337, 175 S. W. 2d 384; Rowland v. Rogers 199 Ark. 1041, 137 S. W. 2d 246; and other cases col lected in West’s Arkansas Digest, “Constitutional Law” § 46. Certainly no such necessity exists in the case at bar: on the contrary, orderly procedure demonstrates that the constitutional question has not yet been reached. In the oral argument it was conceded by appellant that this is not a proceeding brought under the declaratory judgment law — Act 274 of 1953.
Appellant claims that the Motion to Strike is appealable under the concluding paragraph of § 27-2101 Ark. Stats., the germane portion of which reads:
“Whenever the decision of any motion ... in any of the inferior courts of this State, involves the constitutionality of any law of this State . . . then an appeal shall lie . . . from such decision . . . to the Supreme Court.”6
In claiming that the above Statute is not governing, the appellee cites us to the case of State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S. W. 555; but we do not reach the question of appealability for the same reason that we do not reach the question involving the constitutionality of Act 348 of 1953.
Our decision in this case is, that the Trial Court should not have decided questions of alimony and property rights and constitutional issues until those questions had been reached in the orderly procedure, as herein-before indicated. Therefore we dismiss the appeal without prejudice, and remand the cause to the Chancery Court with directions that further procedure, if any be desired by the parties, be in accord with the views herein expressed. The costs are taxed against the appellant.
Justice Robinson concurs. Justices Holt, Millwee and Ward dissent.In regard to property rights, the allegation in Mr. Smith’s Motion to Strike was in the following language: “That under the Statute and the case law of the State of Pennsylvania a wife granted an absolute decree of divorce by a court of that state is not entitled to receive a division of, or any portion of, her husband’s property, provided, however, that the property acquired as tenants by the entireties is to be held, after an absolute decree of divorce, as tenants in common of equal one-half shares in value, and either the husband or the wife may bring a suit to have the property sold and the proceeds divided between them; . . .”
Mrs. Smith does not appear to have challenged the Act as violative of Art. 5, § 23 of the Arkansas Constitution. See Farris v. Wright, 158 Ark. 519, 250 S. W. 889.
Section 133 of Leflar on Conflict of Laws contains a discussion on the matter of “Jurisdiction to Grant Divorces”.
One such comparatively recent case is Williams v. North Carolina, 325 U. S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092, 157 A. L. R. 1366.
A typographical error appears in this Section in Ark. Stats.: the last word of the Section is “hereby” instead of “thereby”.