Clay v. Clay

• Decision Date: 28 April 1924
• Docket Number: 24125
• Citation: 99 So. 818,134 Miss. 658
• Court: Mississippi Supreme Court
• Parties: CLAY v. CLAY

99 So. 818

134 Miss. 658

CLAY v. CLAY

No. 24125

Supreme Court of Mississippi

April 28, 1924

Division A

APPEAL from chancery court of Attala county, HON. T. P. GUYTON Chancellor.

Suit by Mrs. Myrtle Clay against Alexander Clay. From a decree for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

S. L Dodds, Fulton Thompson and R. H. & J. H. Thompson, for appellant.

The only question presented by this appeal, is whether the chancery court had jurisdiction to grant the complainant a divorce from her husband. The pleadings if true, we submit, gave the court jurisdiction of the subject-matter of the suit; and of the person of the complainant; the appearance of the defendant gave the court jurisdiction of the person of the defendant. It is immaterial that the defendant was not served personally with process since he entered his appearance to the suit and pleaded to the jurisdiction of the court. As we understand the record, he did not plead to the process; his plea must have been to the court's jurisdiction of the subject-matter of the suit. If defendant pleaded to the process his so doing gave the court jurisdiction of his person, although he withdrew the plea. Code 1906, section 3946.

Whether the finding of the chancery court that neither the complainant nor the defendant actually resided in the state of Mississippi for one year next preceding the commencement of this suit, be or be not erroneous can only be determined by a careful consideration of the testimony in this case, consisting alone of the complainant's deposition. It will be noted that the court's finding that neither of the parties actually resided in the state of Mississippi for one year next preceding the beginning of the suit was a departure from the statute. Mississippi Code 1906, section 1675, paragraph (c), deals with domicil and not with residence. However, we will treat the finding as if it had pursued the statute using the word residence meaning domicil. Upon this testimony we must respectfully submit to this court that the court below erred in denying the complainant a divorce; relief which she was certainly entitled to obtain from some court, and could obtain from no other. The complainant was domiciled in this state within the meaning of both paragraphs (b) and (c) of the Code of 1906, section 1675, when this suit was commenced and this is clearly proved.

The primary meaning of the word "domicil" and the sense in which it is ordinarily used is well stated in 1 Bouvier's Law Dictionary (Rawle's Third Revision), title "Domicil," page 915. The Mississippi case, Hairston v. Hairston, 27 Miss. 704; s. c. 61 Am. Dec. 530, is decidedly in point. See also, Weaver v. Norwood, 59 Miss. 665.

If we be wrong in every proposition hereinbefore advanced, still, we submit, the court below erred in adjudging that it was without jurisdiction of the case at bar. It had jurisdiction of the cause viewed alone as an attachment in chancery. It is well settled in this state that a wife without seeking a divorce, may sue her husband for maintenance and support. The first and leading case so deciding was Garland v. Garland, 50 Miss. 694. The same principle will support a suit by the wife for the maintenance and support of an infant child or children where the husband has failed and refused to support the child or children of the marriage. In fact any third person who had maintained and supported an infant whose father has failed to maintain it has a cause of action against the defaulting father. East v. King, 77 Miss. 738.

OPINION

ANDERSON, J.

Appellant, Mrs. Myrtle Clay, filed her bill in the chancery court of Attala county against appellee Alexander Clay, her husband, a nonresident of this state, for divorce and alimony, temporary and permanent.

Appellant's bill contained all the statutory requirements. Appellant sought to bring her case for divorce under paragraph (b) of section 1675, Code of 1906, section 1417, Hemingway's Code. Under the allegations of her bill and under the evidence, the trial court was without jurisdiction under either of the other paragraphs of said section. That part of the statute under which appellant sought to bring her case is in the following language:

"The jurisdiction of the chancery court in suits for divorce shall be confined to the following classes of cases: . . . (b) Where the complainant was domiciled within this state when the suit was commenced, and the defendant was personally served with process within this state."

Appellee appeared and pleaded to the jurisdiction of the court and then was permitted by the court to withdraw such plea. In the taking of the deposition of appellant, appellee's attorney filed cross-interrogatories. Appellant's deposition was read to sustain the allegations of the bill. The trial court dismissed appellant's bill on...