99 So. 818 | Miss. | 1924
delivered the opinion of .the court.
Appellant, Mrs. Myrtle Clay, filed her bill in the chancery court of Attala county against appellee Alexander Clay, her husband, a nonresident of this state, for divorce and alimony, temporary and permanent.
Appellant’s bill contained all the statutory requirements. Appellant, sought to bring her case for divorce
‘ ‘ The jurisdiction of the chancery court in suits for divorce shall be confined to the following classes of cases: . . . (b) Where the complainant was domiciled within this state when the suit was commenced, and the defendant was personally served with process within this state. ’ ’
Appellee appeared and pleaded to the jurisdiction of the court and then was permitted by the court to withdraw such plea. In the taking of the deposition of appellant, appellee’s attorney filed eross-interrog'atories. Appellant’s deposition was read to sustain the allegations of the bill. The trial court dismissed appellant’s bill on the ground that it was without jurisdiction because it found from the evidence that appellant was not domiciled in this state at the time of the filing of her bill. Appellant alleged in her bill, and the evidence tended to establish the fact, that appellant and appellee at the' time of their separation had a home and a domicile where they resided in Attala county in this state; that after the separation appellee left the state and became a nonresident thereof and was such at the time of the filing of the bill; that some time after the separation appellant, in order to support herself and her infant child, left the state and got employment in California, where at the time of the filing of the bill and the trial she was residing with her child engaged in work which yielded them a support; that she had been out of the state so eng-aged for' about a year. Appellant testified, and there was no testimony to the contrary, that her permanent home was in Attala county in this state, where she and her husband resided at the time of their separation and had resided for some time
The first question is whether appellant was domiciled in this state when she filed her bill. In ordinary acceptation the term “domicile” means the place where a person lives and has his home. It is the place where he has his true fixed and permanent home and establishment and to which whenever he is absent he has the intention of returning. Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; 19 C. J. section 2, pp. 395, 396. In determining the question whether appellant was domiciled in this state at the time of the filing of her bill, the further principle of law should be considered that, when a domicile is once acquired, it is presumed to continue, and the burden of proving to the contrary is upon, the party alleging it. 19 C. J., section 66, pp. 431, 432. At the time of their separation, as stated, appellant and appellee had a domicile in this state, which appellant still claims as her domicile. Until the contrary is shown, the presumption is that it has continued to be her domicile. There is no evidence to show that it has not, except appellant’s mere absence from the state and the circumstances attending the same. On the contrary, her testimony is to the effect that she had not acquired a domicile elsewhere and her domicile in this state had never been abandoned. What evidence there is in the record is without conflict. We hold therefore that it was sufficiently established that appellant was domiciled in this state when she began her suit..
The next question is whether or not there was a lack of jurisdiction in the trial court because appellee was not personally served with process within this state. The record shows that appellee was a nonresident of the state and was made a party by publication of notice as required by law, but afterwards appeared by counsel and filed a plea to the jurisdiction of the court, which later he with
Reversed and remanded.
