Gee v. Gee

• Decision Date: 17 February 1949
• Docket Number: 6 Div. 828.
• Parties: GEE v. GEE.
• Court: Alabama Supreme Court

39 So.2d 406

252 Ala. 103

GEE v. GEE.

6 Div. 828.

Supreme Court of Alabama

February 17, 1949

Rehearing Denied March 31, 1949.

John A. Altman, of Carrollton, for appellant.

W A. Davis, of Aliceville, for appellee.

FOSTER Justice.

This is a second appeal in this case, Gee v. Gee, 249 Ala 642, 32 So.2d 657. The contention is here urgently made, not treated on former appeal, that the bill does not contain jurisdiction or allegations, in that the ground for divorce is voluntary abandonment, and it does not allege, as required by Title 34, section 27, Code, that complainant has been a bona fide resident citizen of this State for twelve months next preceding the filing of the bill, and that the proof shows that complainant was not such a resident.

There was a demurrer to the bill raising the question. That demurrer was overruled January 6, 1947. There was a final decree of divorce May 8, 1947. That was reversed by this Court on November 20, 1947. That ruling on the demurrer cannot be reviewed on a second appeal. Alabama City, G. &amp A. Ry. v. Bates, 155 Ala. 347, 46 So. 776; Smith v. Gibson, 191 Ala. 305, 68 So. 143; Sovereign Camp, W.O.W. v. Moore, 235 Ala. 117, 177 So. 642. There has been no further ruling on the demurrer.

But the contention referred to goes to the jurisdiction of the court over the subject matter, Martin v. Martin, 173 Ala. 106, 55 So. 632; Smith v. Gibson, supra; Wright v. Wright, 200 Ala. 489, 76 So. 431; Cooper v. Cooper, 210 Ala. 13, 97 So. 66.

On June 21, 1948, respondent filed a motion to dismiss the suit because the evidence shows that at the time this suit was begun the complainant was a resident citizen of Mississippi, setting up the constitution and laws of Mississippi, and his qualification and registration as a voter in Mississippi, being inconsistent with his residence in Alabama when the bill was filed. The motion also sought to dismiss the case because of the absence of security for costs on account of his non-residence. The court overruled the motion in both respects.

The first question goes to the jurisdiction of the court over the subject matter, and the manner of raising it is not important. If the bill is insufficient in that respect, or if the evidence shows that the court is without jurisdiction of the subject matter, relief as to it will be denied.

Residence under section 27, supra, not only must be alleged, but by its terms must be proved. But the argument overlooks the amendment to section 27, supra, by the Act of July 6, 1945 (see, General Acts 1945, page 691), by adding a proviso that 'the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action.' We had occasion to consider that amendment in Jennings v. Jennings, Ala., 36 So.2d 236. We held that there was necessarily implied an exception to the effect of that proviso, for it cannot have operation if both parties were domiciled out of Alabama. The res over which the jurisdiction of the court is limited is the marital status of a citizen of Alabama. So that while the terms of the proviso do not so require, it is to be so treated to have any effect at all. In that case both parties were non-residents of Alabama. Therefore, we held that the proviso did not authorize the court in this State to grant a divorce. The parties cannot by consent confer such jurisdiction, nor can the legislature do so by an act, when the res is not within the power of State authorities.

We are now confronted with the necessity for a further construction of the Act to determine whether under it, if one of the parties is a resident, and the other a non-resident, the ocurt had jurisdiction. It is out view that if the court has jurisdiction over the res because the respondent is a resident of Alabama, it would be immaterial by virtue of the proviso whether complainant was such a resident when the bill was filed, or that he had been for twelve months. In the instant case the court has jurisdiction of both parties, since the complainant submitted to its jurisdiction by filing the bill, and respondent was personally served in Alabama and appeared generally, and is a resident citizen of Alabama. Norris v. Norris, 224 Ala. 678, 141 So. 672.

We know of no principle of law which would prohibit the legislature from enacting such a law as the proviso applicable only when one or both of the parties is a resident of Alabama when the bill was filed. By residence here we mean domicile, which embraces citizenship. It is firmly established by our decisions that residence in our divorce statutes means domicile. Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510; Caheen v. Caheen, 233 Ala. 494, 172 So. 618. Such was the meaning of residence in section 27, supra, before 'citizen' was added by the Act of March 29, 1933 (see, Acts 1933, Ex.Sess., page 85). We do not think it is of controlling significance that by that amendment 'citizen' was added, and was carried into the amendment adding the proviso of July 6, 1945, whereas a similar amendment to section 29, Title 34, Code, was made, leaving it as it was as to residence. We think that in both instances the term means domicile, as we held it to mean as used in section 28, Title 34. We do not think it is of controlling importance whether a bill...