38 So. 2d 3 | Ala. | 1948
This is a bill for divorce. It appears from the allegations of the bill that complainant and respondent are both residents of the State of Alabama. When this is the situation, divorce proceedings should be filed either in the county where the respondent resides or in the county where the parties resided when the separation occurred. Section 28, Title 34, Code of 1940; Puckett et al. v. Puckett,
Section 28, Title 34, supra, however, has been held to be for the benefit of the parties and may be waived. It relates *482
to venue as distinguished from jurisdiction of the subject matter. Wakefield v. Wakefield,
It is settled in this jurisdiction that where a bill for divorce discloses on its face that it is not filed in the proper county, this renders it subject to demurrer or to be dismissed on motion, if there has not been a waiver of the objection. Puckett et al. v. Puckett, supra; Hammons v. Hammons, supra. The same is true as to bills in equity in general. — Branch Bank at Mobile v. Rutledge and Watts,
This bill was filed in the circuit court of Jefferson County, in equity. It does not affirmatively appear from the bill that it was filed properly in that county, for it is not alleged therein that the defendant resides in Jefferson County, or that the parties resided there at the time the separation occurred. The only averment as to the residence of the respondent is that he is a resident of the State of Alabama. But it does not affirmatively appear from the averments of the bill that it is filed in the wrong county. For aught that appears from the averments of the bill the respondent is a resident of Jefferson County and the parties resided therein at the time the separation occurred. In all of the cases cited in the preceding paragraph, the bill affirmatively showed on its face that it was filed in the wrong county. Since that is not the situation in the instant case the rule of those cases is not here applicable. We think the demurrer was properly overruled for the reason that it appears from the bill that the court had jurisdiction of the subject matter and it does not affirmatively appear from the averments of the bill that it was filed in the wrong county. In the case of Abraham et al. v. Hall et al.,
To like effect is the case of Kelley v. Wollner,
In view of the conclusion above reached, it is unnecessary to pass on the *483 sufficiency of the grounds of demurrer to raise the question of venue. But it might be well to point out that even if the bill had shown on its face that it was filed in the wrong county, this defect could not be raised by the first ground of demurrer, "there is no equity in the bill." Kyser v. American Surety Co. of New York, supra; Hammons v. Hammons, supra.
The decree of the trial court is affirmed.
Affirmed
BROWN, FOSTER, LIVINGSTON and STAKELY, JJ., concur.