24 S.E.2d 672 | Ga. | 1943
Lead Opinion
1. Under the constitution (Code, § 2-4301), a suit for divorce against a resident of this State must be brought in the county where the defendant resides. In order to give the court jurisdiction, it is necessary that this fact be alleged and established by evidence. It can not be waived by agreement.
2. Where a motion to dismiss a divorce action and a cross-action, on the ground that the defendant did not reside in the county where the suit was brought, was supported by undisputed testimony that before the time the suit was filed the defendant moved her personal effects and belongings from her residence in the county where the suit was filed to a residence in another county, intending to make the other county her domicile, and that she actually left the first county, and, after making a trip to California covering a period of approximately two months, returned to her new residence, and had resided there ever since, the evidence demanded a judgment sustaining the motion and dismissing the entire proceedings.
The motion to dismiss was tried by the judge without a jury. On that hearing the defendant was sworn and testified as a witness for the plaintiff. Her testimony in substance was, that she lived at Chestatee Inn, No. 580 Ponce de Leon Avenue N.E., in Fulton County, Georgia, for some months before the time she left there in April, 1942; that her brother and sister lived there with her, but that they moved to a place on Fairview Road in DeKalb County, Georgia, just before she left Atlanta on April 24, 1942; that she moved all her personal effects and other things from Fulton County to the Fairview Road house in DeKalb County, and gave up her room at the Chestatee Inn, before leaving on a trip to California; that when she left Atlanta she planned to live with her brother and sister in DeKalb County on her return from California; that before she left Atlanta she spent one night at another sister's home in Fulton County; that when the divorce suit was filed on June 16, 1942, she was on her way back to Georgia from California; that she had not taken up residence in DeKalb County or any other place; that she had no place of abode in Fulton County on June 16, 1942, or thereafter; that when she returned to Georgia on June 18, 1942, she went to live with her brother and sister on Fairview Road; that she has lived with them continuously since that time and now lives there; that Fairview Road is in DeKalb County; that while she was living on Fairview Road she was informed by counsel for the petitioner that he represented *462
her husband in a divorce action, and she was asked whether she wished to acknowledge service or be served by the sheriff; that she acknowledged service on June 20, in the office of counsel for the plaintiff; that previously to April, 1942, she had lived continuously in Fulton County for less than one year, and that for several years before that she had lived in various other places including DeKalb and Fulton Counties. She further testified: "I did not tell my husband that I lived on Fairview Road until some time after the divorce suit was filed." T. O. Creel, a witness for the plaintiff, testified, that he was deputy sheriff of Fulton County, and as such handled the papers in the divorce action; that he went to the former residence of the defendant on Ponce de Leon Avenue, but failed to find the defendant, and was informed that she had moved away; that he returned to his office with the papers and informed counsel for the plaintiff; that he never served the papers on the defendant; and that all of Fairview Road is in DeKalb County. It was stipulated by counsel for both parties that the petitioner was a resident of Colquitt County at the time the divorce suit was filed; and that the petition was filed in Fulton County superior court in good faith. At the conclusion of arguments of counsel the court entered judgment overruling and dismissing the motion or petition to dismiss the proceedings, to which judgment the plaintiff excepted.
1. The county in which a suit for divorce must be filed is fixed by the constitution. Code, § 2-4301. It is there provided that if the defendant is a resident of the State, suit must be brought in the county where the defendant resides; and if the defendant is a non-resident of the State, then suit must be brought in the county in which the plaintiff resides. There are no exceptions to this rule, and a failure to observe it deprives the court of jurisdiction, which renders void any judgment or decree therein. Haygood v. Haygood,
2. However, some difficulty is encountered when it is sought to determine exactly what facts and conditions constitute residence as referred to in the constitutional provision. Domicile of an adult person laboring under no disability is where the family of such person permanently resides in the State. If one has no family or the family does not reside in the State, the place where such person shall generally lodge is his domicile. Code, § 79-401. Domicile *464
of a person sui juris may be changed "by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention." Code, § 79-406. The evidence offered in support of the motion to dismiss shows, without dispute, an intention on the part of the defendant to change her residence. We think it also shows "an actual change of residence." She testified as follows: "I moved all of my personal effects and other things from the Chestatee Inn to the Fairview Road house, which is in DeKalb County, Georgia, and gave up my room at the Chestatee Inn." This testimony not only shows that the personal effects and property of the defendant were actually moved to DeKalb County, but it shows that the defendant herself moved it; and to do this she had to go in person to the residence on Fairview Road in DeKalb County. It is our opinion that the evidence demanded a finding that the defendant in April, before the divorce suit was filed in June, changed her domicile from Fulton to DeKalb County, and that she was a resident of the latter county at the time the divorce suit was filed in Fulton County. The evidence on a change of the domicile meets the requirements of law as stated in Worsham v.Ligon,
Judgment reversed. All the Justices concur.
Concurrence Opinion
with reservation that they do not commit themselves as to correctness of the decision in Redfearn v.Hines,