Darbie v. Darbie
| Decision Date | 15 April 1943 |
| Docket Number | 14471. |
| Citation | 25 S.E.2d 685,195 Ga. 769 |
| Parties | DARBIE v. DARBIE. |
| Court | Georgia Supreme Court |
Swift, Pease, Davidson, Swinson & Chapman and Arthur F. Copland, all of Columbus, for plaintiff in error.
Hatcher & Hatcher and J. Madden Hatcher, all of Columbus, for defendant in error.
Syllabus Opinion by the Court
1. Article 6, Chapter 2-43, section 16 of the State constitution provides that 'Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this State, then in the county in which the plaintiff resides.' Code, § 2-4301. These constitutional requirements are mandatory and jurisdictional, should as against demurrer be alleged, and must be proved; and cannot be modified by waiver or consent. Haygood v. Haygood, 190 Ga. 445, 448, 9 S.E.2d 834 130 A.L.R. 87, and cit.; Owens v. Owens, 190 Ga 191, 192, 8 S.E.2d 644; Bellamy v. Bellamy, 187 Ga 56, 58, 199 S.E. 745; Jones v. Jones, 181 Ga 747(4), 751, 184 S.E. 271; Wade v. Wade, 195 Ga. 748, 25 S.E.2d 683, just decided.
2. Prior to its amendment in 1939 (Ga. L.1939, p. 203), section 30-107 of the Code of 1933 provided as follows: 'No court shall grant a divorce of any character to any person who has not been a bona fide resident of the State twelve months before the filing of the application for divorce.'
3. The ruling of this court in Dicks v. Dicks, 177 Ga. 379, 170 S.E. 245, decided in 1933, with respect to a divorce suit brought in 1932, was, that, while the statute in conferring jurisdiction in divorce suits might not exact citizenship, the word 'resident' as there used was equivalent to domicile; and that a nonresident of this State could not acquire a Georgia domicile, such as would authorize the bringing of a divorce suit, under the statute quoted, by residing on or within a United States military reservation.
4. Thereafter, by act of the General Assembly approved March 24, 1939, the Code, § 30-107, was amended by adding at its end the words: 'Provided that any person who has been a resident of any United States army post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation.' Ga. L. 1939, p. 203.
5. The instant suit for divorce was brought in Muscogee County against the defendant wife as a nonresident after the Code, § 30-107, had been amended, and alleged that: 'Petitioner for twelve months next preceding the filing of this application for divorce, was and is a bona fide resident of the State of Georgia and of Muscogee County, within the meaning of section 30-107, as amended, of the Code of Georgia, Annotated, of 1933, in that petitioner, for a period of one year next preceding the filing of this application for divorce, was member and officer of the army of the United States of America, and during...
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