293 S.W. 899 | Tex. App. | 1927
In April, 1922, appellee was granted a divorce from appellant in the Nineteenth district court of McLennan county. In the early part of 1926, the exact date not being shown by the record, appellant filed this suit to set aside the judgment rendered in the divorce case. The only reason he alleged for having the divorce judgment set aside was that appellee, at the time the divorce suit was filed, had not resided in McLennan county, where the suit was filed, for 6 months next preceding the time same was filed, as is required by article 4631 of the Revised Statutes. Appellant in the divorce case was cited by personal citation to appear and answer, but did not file any answer. This cause was tried to the court, and it refused to set the divorce judgment aside.
Appellant's contention is that the judgment granting the divorce is absolutely void, because, he contends, the evidence is undisputed that, at the time appellee filed her suit for divorce, she had not resided in McLennan county for 6 months next preceding the filing of the same. The record shows that appellant and appellee were married in Waco in about 1901, and lived together as man and wife until about April, 1921, in Erath county, Tex., at which time appellee, by reason of cruel treatment, left her husband and came to Waco, where she had lived prior to her marriage, and where one of her sisters was living. She testified that at the time she came to Waco in April, 1921, she came with the intention of making Waco her permanent home. The record shows that she remained in Waco only a short time, and, because of the delicate condition of her health, she was unable to obtain employment, and she went to Bosque county to do some practical nursing, and then to her sister's in Kaufman county, where she gave birth to a child, and where she was, on account of a smallpox epidemic, quarantined for 91 days. As soon as the quarantine was lifted, she returned to Waco, and a few weeks thereafter filed the suit for divorce. She testified that at all times after she left her husband in April, 1921, she claimed Waco as her home. She testified that when her divorce was granted she stated fully to the court all the facts with reference to where she had been staying and with reference to her intentions and her residence since leaving her husband. The record is silent as to whether on the divorce hearing any testimony except that of appellee was heard by the court.
It is well settled, both by statute and decisions, that, in order for a party to maintain a divorce suit, he must have been an actual bona fide inhabitant of Texas for a period of 12 months, and must have resided in the county where the suit is filed for 6 months next preceding the filing thereof. Article 4631, Revised Statutes; Dickinson v. Dickinson (Tex.Civ.App.)
"In divorce cases, the fact of residence is made jurisdictional by statute, and must be proved to the satisfaction of the court trying the case — must be found to be true as a matter of fact. * * * Thus it is seen that this particular matter of fraud (residence as necessary to the jurisdiction of the court) was an issue, and adjudicated in said cause No. 1874."
The trial court in the original cause, based on the entire testimony offered before him at the time, necessarily found as a matter of fact that appellee had resided in McLennan county for the 6 months next preceding the time she filed her suit for divorce, and it should be, we think, presumed that the trial court had sufficient testimony on which to base said finding. De Arment v. De Arment (Tex.Civ.App.)
The judgment of the trial court is affirmed.
