Brumfield v. Baxter, Judge
| Decision Date | 30 April 1948 |
| Citation | 307 Ky. 316 |
| Parties | Brumfield v. Baxter, Judge. |
| Court | United States State Supreme Court — District of Kentucky |
1. Divorce. — Special demurrer filed to husband's petition for divorce would be insufficient to raise question of improper venue where absence of venue did not appear from husband's petition, and its allegations could not be enlarged by reciting extraneous facts in the special demurrer. Civil Code of Practice, sec. 76.
2. Divorce. — Special demurrer by wife to husband's divorce petition though named an affidavit followed by recitation of facts showing improper venue, was effective as an "answer in abatement" under the statute providing that a party may make objections by answer or other proper pleading. Civil Code of Practice, sec. 118.
3. Divorce. — No length of time is required by law to effect a change of residence required for the determination of venue in a divorce action. Civil Code of Practice, sec. 76.
4. Divorce. — Where husband and wife separated, and on same day wife took up temporary residence in Y.W.C.A. in another county to which husband delivered her clothing, that county was the county of wife's residence wherein husband was required by statute to bring his divorce action. Civil Code of Practice, sec. 76.
5. Prohibition. — Ordinarily, original prohibition proceedings in the Court of Appeals will not be entertained where right of appeal to Court of Appeals exists in the petitioner, but such jurisdiction will be taken without exception where there is no appeal followed by great and irreparable injury. Const. sec. 110.
6. Courts. — Appeal will not lie to the Court of Appeals from a judgment granting a divorce.
7. Courts. — Court of Appeals had original jurisdiction of prohibition proceedings to prohibit Circuit Court judge from proceeding with husband's divorce action which had not been filed in county of wife's residence as required by statute. Civil Code of Practice, sec. 76; Const. sec. 110.
Paul H. Mansfield and Scott Reed for petitioner.
B.T. Moynahan, Jr. for respondent.
Granting writ.
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...
To continue reading
Request your trial