Brumfield v. Baxter

Decision Date30 April 1948
Citation307 Ky. 316,210 S.W.2d 972
PartiesBRUMFIELD v. BAXTER, Judge.
CourtKentucky Court of Appeals

Original prohibition action by Margorie B. Brumfield against W. J Baxter, Judge, Twenty-fifth Judicial District of Commonwealth of Kentucky, to prohibit respondent from further proceeding to try and determine a divorce action pending before him in that court.

Writ granted.

Paul H. Mansfield and Scott Reed, both of Lexington for petitioner.

B. T Moynahan, Jr., of Nicholasville, for respondent.

THOMAS Justice.

Petitioner Margorie B. Brumfield, and George W. Brumfield were married February 7, 1942, and lived together, mostly in Jessamine County, until January 25, 1948, when they separated. At that time, and for 14 months prior thereto, petitioner was employed by the Fred Bryant Motor Company located in Lexington, Kentucky. Immediately following the separation and on the same day, petitioner took up her residence in the city of Lexington first temporarily occupying a room with the Y.W.C.A. until she could secure a permanent home, which she did soon thereafter at 209 East Maxwell Street in that city.

On January 31 following the separation the husband filed an action in the Jessamine circuit court against petitioner seeking a divorce on the ground that for more than six months his wife behaved toward him in such cruel and inhuman manner as to indicate a settled aversion to him and to permanently destroy his peace and happiness. Petitioner filed a special demurrer to that petition on the ground that the action was brought in the wrong venue, since at the time the husband filed his petition against her she had become and was a bona fide resident of Lexington, Kentucky, and resided therein.

Section 76 of the Civil Code of Practice requires that the proper venue of a divorce action filed by a husband against his wife is in the county where she resides, if it is located in this Commonwealth. Petitioner followed the filing of her special demurrer with a pleading in the nature of an affidavit in which she alleged the above facts showing her change of residence from Jessamine County to Fayette County, and further stating that on February 3 of that year she filed an action in the Fayette circuit court against her husband seeking a divorce from him upon the same ground that he alleged against her in his Jessamine circuit court action. In the meantime she gave her deposition proving her change of residence as above stated, followed by respondent overruling her objection to the venue of the husband's divorce action. She then filed this original action in this court to prohibit respondent from proceeding with the Jessamine County divorce action and from making any orders therein, except one to dismiss her husband's petition without prejudice.

It is argued by counsel for respondent that the petitioner's special demurrer filed to her husband's petition was insufficient to raise the question of improper venue, since the absence of venue did not appear from her husband's petition and that its allegations could not be enlarged by reciting extraneous facts in the special demurrer, and which is no doubt correct. However, the filing of the special demurrer by petitioner was not the only step taken by her in her husband's divorce action challenging the proper venue in which that action should have been filed. As we have seen, she followed her special demurrer--though named an affidavit--with a recitation of the facts showing that she at the time of the filing of her husband's action had moved to Lexington, Kentucky, with the intention of permanently locating therein, all of which is authorized and strictly pursuant to the provisions of sec. 118 of the same Code of Practice. The fact that her attorneys styled that pleading an 'affidavit' instead of answer in abatement is immaterial and entirely too technical to be considered, which would be true in the absence of language contained in section 118 of the Code, a part of which says: 'A party may, by an answer or other proper pleading, make any of the objections mentioned in section 92, the existence of which is not shown by the pleading of his adversary.' (Our emphasis.)

It is therefore seen that the failure of petitioner's counsel to designate his client's affidavit as an...

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4 cases
  • Levisa Stone Corp. v. Hays
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 14, 1968
    ...it appropriate to entertain this petition. See Commonwealth ex rel. Meredith v. Murphy, 295 Ky. 466, 174 S.W.2d 681; Brumfield v. Baxter, 307 Ky. 316, 210 S.W.2d 972; Schaetzley v. Wright, Ky., 271 S.W.2d 885; Harrod v. Meigs, Ky., 340 S.W.2d 601. It may be noted here that one of the ground......
  • Burke v. Tartar
    • United States
    • United States State Supreme Court — District of Kentucky
    • October 6, 1961
    ...Ky.1959, 320 S.W.2d 794; Stewart v. Yager, Ky.1954, 272 S.W.2d 674; Weintraub v. Murphy, Ky.1951, 240 S.W.2d 594; Brumfield v. Baxter, 1948, 307 Ky. 316, 210 S.W.2d 972; Hayes v. Blackwell, 1946, 303 Ky. 548, 198 S.W.2d 203; Thomas v. Newell, 1939, 277 Ky. 712, 127 S.W.2d 610. In such cases......
  • Hummeldorf v. Hummeldorf, 80-CA-1296-MR
    • United States
    • Kentucky Court of Appeals
    • May 1, 1981
    ...(1961) (wife lived four days in new county); Calhoun v. Peek, Ky., 419 S.W.2d 152 (1967) (seven days in new county); Brumfield v. Baxter, 307 Ky. 316, 210 S.W.2d 972 (1948) (six days in new Under the current statute, our courts have already had to wrestle with a race to the courthouse; that......
  • Sebastian v. Turner
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 6, 1959
    ...there. It was held that her actions established her intention, in good faith, to become a resident of Louisville. In Brumfield v. Baxter, 307 Ky. 316, 210 S.W.2d 972, the husband and wife lived in Jessamine County. The wife left the husband and moved to Lexington where she occupied a room a......

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