Evans v. Evans
| Decision Date | 20 February 1940 |
| Citation | 141 Fla. 860,194 So. 215 |
| Parties | EVANS v. EVANS. |
| Court | Florida Supreme Court |
Certiorari to Circuit Court, Union County; A. Z. Adkins, Judge.
Suit for divorce by Evan T. Evans against Ruby Evans, wherein the defendant filed motion to dismiss which embraced plea of privilege. To review adverse interlocutory orders, defendant brings certiorari.
Order in accordance with opinion.
Austin Miller and L. R. Milton, both of Jacksonville, for petitioner.
Roger Waybright and Edger W. Waybright, Sr., both of Jacksonville for respondent.
Writ of certiorari was issued under rule thirty-four for the review of two interlocutory orders entered by the chancellor in cases pending in Union County. One of them denied the petitioner the privilege of being sued for divorce in Duval County and the other restrained her from prosecuting a suit for separate maintenance in the same county.
Hereafter in the interest of simplicity, we will refer to petitioner as the wife and to respondent as the husband.
The husband filed bill for divorce in Union County and in it alleged that he was resident in Duval County and that the wife was a resident of Buncombe County, North Carolina. She was required to appear November sixth, nineteen thirty-nine, which she did by her solicitors. The following rule day she filed a motion to dismiss which embraced a plea of privilege. The pleading was immediately attacked by motion to strike and demurrer and one of the orders questioned in this proceeding was entered not only denying the motion to dismiss the bill but also sustaining the attacks on the plea of privilege. In this fashion in presented the first question involving the soundness of the wife's position that she should be vouchsafed the right to defend against the divorce suit in Duval County.
Although pleas have been abolished and the defense should have been incorporated in an answer and determined by the chancellor at a separate hearing, if in his discretion that appeared advisable (Sec. 33, Subsection 2, 1931 Chancery Act, c. 14658), no objection was made to the manner of presentation, so we will dispose of the matter on its merits.
Exposition of rule thirty-four lately adopted to regulate the review of interlocutory orders appears in an opinion by Mr. Chief Justice Terrell in the case of Greater Miami Development Corporation v. M. Sewell Pender and another, Fla., 194 So. 867, decided this term but not yet reported [in State reports]. Reference to the observations in that opinion will dispense with necessity here for further discussion of the functions of the writ of certiorari.
That the substance of this feature of the controversy may be more easily understood, we give a resume of the allegations relied upon by the wife to support her contention that the suit was improperly brought in Union County. She asserted that she and her husband had lived in Duval County continuously for many years and had never resided in the other county; that she had been suffering from tuberculosis for many years and, in search of health and on the advice of her physician, went to Asheville, North Carolina, in March, nineteen thirty-nine, where she entered a hospital remaining until the following July; that she then removed to a boardinghouse in the same city; that she stayed there 'with the knowledge, consent and assistance' of her husband, returning to her home in Jacksonville in December, nineteen thirty-nine; and that none of the acts described in the bill of complaint had been done in Union County.
Upon the interpretation of the provisions of Section 4219, C.G.L.1927, in the light of the alleged facts must we determine the efficacy of the wife's plea. It is:
To be more specific, we must decide whether a definition of the word 'resides' would justify our deciding that the wife who lived in Jacksonville for many years and who with the aid and consent of the husband went to a foreign state, known for its beneficent climate, in quest of health, thereupon became a resident of that state so that the husband could sue her for divorce in any county in Florida according to his fancy.
As has been stated in the briefs, this court has found occasion to distinguish between the words 'domicile' and 'abode,' Minick v. Minick, 111 Fla. 469, 149 So. 483, and said that the latter indicates a living place impermanent in character while the former denotes fixed abode. It was also stated there, further quoting Corpus Juris on the subject, that:
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