39 So. 2d 406 | Ala. | 1949
This is a second appeal in this case, Gee v. Gee,
There was a demurrer to the bill raising the question. That demurrer was overruled January 6, 1947. There was a final decree of divorce May 8, 1947. That was reversed by this Court on November 20, 1947. That ruling on the demurrer cannot be reviewed on a second appeal. Alabama City, G. A. Ry. v. Bates,
But the contention referred to goes to the jurisdiction of the court over the subject matter, Martin v. Martin,
On June 21, 1948, respondent filed a motion to dismiss the suit because the evidence shows that at the time this suit was begun the complainant was a resident citizen of Mississippi, setting up the constitution and laws of Mississippi, and his qualification and registration as a voter in Mississippi, being inconsistent with his residence in Alabama when the bill was filed. The motion also sought to dismiss the case because of the absence of security for costs on account of his non-residence. The court overruled the motion in both respects.
The first question goes to the jurisdiction of the court over the subject matter, and the manner of raising it is not important. If the bill is insufficient in that respect, or if the evidence shows that the court is without jurisdiction of the subject matter, relief as to it will be denied.
Residence under section 27, supra, not only must be alleged, but by its terms must be proved. But the argument overlooks the amendment to section 27, supra, by the Act of July 6, 1945 (see, General Acts 1945, page 691), by adding a proviso that "the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the *105
cause of action." We had occasion to consider that amendment in Jennings v. Jennings, Ala.,
We are now confronted with the necessity for a further construction of the Act to determine whether under it, if one of the parties is a resident, and the other a non-resident, the court has jurisdiction. It is our view that if the court has jurisdiction over the res because the respondent is a resident of Alabama, it would be immaterial by virtue of the proviso whether complainant was such a resident when the bill was filed, or that he had been for twelve months. In the instant case the court has jurisdiction of both parties, since the complainant submitted to its jurisdiction by filing the bill, and respondent was personally served in Alabama and appeared generally, and is a resident citizen of Alabama. Norris v. Norris,
We know of no principle of law which would prohibit the legislature from enacting such a law as the proviso, applicable only when one or both of the parties is a resident of Alabama when the bill was filed. By residence here we mean domicile, which embraces citizenship. It is firmly established by our decisions that residence in our divorce statutes means domicile. Ex parte Weissinger,
So that if we assume that the evidence shows that complainant was a resident citizen of Mississippi when the bill was filed, it is still sufficient to sustain jurisdiction of the court since the bill makes the allegation which is sustained by the proof that respondent was a resident of Alabama at the time it was filed, meaning a resident-citizen. It is not sufficient to make the allegation without satisfactory proof of such citizenship. The admission by the respondent in her answer of her domicile is not sufficient. It would conflict with section 26, Title 34, Code, and justify a finding of jurisdictional facts without evidence. There must not only be evidence of such domicile, but it must be sufficient to satisfy the court of the truth in fact of such domicile. Colorable residence for that or any other temporary purpose will not be sufficient.
The bill alleges that the place of residence of respondent is Pickens County, Alabama. We think that is sufficient allegation, though it may be true that the allegation of complainant's residence in Alabama is not supported by the evidence.
The evidence clearly shows that respondent made her home in Pickens County, Alabama, at the time of and for a long time before the bill was filed in this case. The court properly overruled the motion to dismiss it for want of jurisdiction. However, the motion was not necessary, because if the proof was not satisfactory that one or both of the parties was a resident citizen of Alabama when the bill was filed, a decree of divorce could not be *106 granted because of the absence of jurisdiction over the subject matter.
The evidence shows that complainant was either a non-resident at the time the suit was filed, or that subsequent thereto, he moved into the state of Mississippi. He was due to give security for costs either under section 59 or 62, Title 11, Code. But the only question raised as to that was a motion to dismiss the cause (ground 6) because he has not given security for costs. The bill was not subject to be dismissed on that ground until he fails to give the security after an order of court is made directing same to be done. Appellant did not pursue the course necessary to obtain the benefit of the applicable statute.
We have considered all the evidence in the case, most of which was taken orally before the trial court. We think the evidence supports his finding and decree of divorce granted to appellee on the ground of voluntary abandonment.
Affirmed.
BROWN, LAWSON and STAKELY, JJ., concur.
