21 S.W.2d 38 | Tex. App. | 1929
Plaintiff in error, who will be identified as plaintiff, instituted a suit against defendant, Abe Mansur, who will for brevity be styled defendant in this court, for a divorce and partition of community estate, but about eight months after filing the suit and several months after defendant had filed his answer and cross-action, requested and obtained a nonsuit in her suit, and the cause was tried on the cross-action of defendant, and defendant was granted a divorce; the care and custody of the four children were vested in plaintiff, and it was ordered that a certain bond, the only community property, be sold and the proceeds be divided equally between the parties, and in view of an appeal the payment of alimony was continued until the final determination of the suit.
Plaintiff in her petition alleged that she had been an actual bona fide inhabitant of the state of Texas for twelve months next preceding the filing of the suit, and had resided in Cameron county for more than six months next preceding the filing of the suit. She also alleged that Abe Mansur resided in said county. The nonsuit was taken by plaintiff several months after the answer and cross-action of defendant had been filed, in which there is no allegation of residence in either state or county, and there is no direct proof that defendant has lived in Texas twelve months and in Cameron county six months immediately preceding the filing of the original suit or the cross-action. The petition of plaintiff was not introduced in evidence. The petition would have been evidence only that plaintiff had alleged jurisdictional matters, but would not have been proof of the allegations, because in suits for divorce allegations or admissions of the adverse party are not sufficient, but there must be both allegation and proof as to matters of inhabitancy in the state and residence in the county. Article 4631, Rev.St.; McLean v. Randell (Tex.Civ.App.)
It has been held that a statute making allegation of residence in the state and county for certain lengths of time absolutely *39
essential in a divorce suit would not preclude a defendant from obtaining a divorce on a cross-bill, even though a nonsuit had been taken and jurisdiction not proved. Charlton v. Charlton (Tex.Civ.App.)
The cross-action was an independent action, and as such the pleader was required to plead his cause of action with the same precision as the plaintiff is required to plead his. Harris v. Schlinke,
The judgment is reversed and the cause remanded.