Hammerstein v. Hammerstein

• Decision Date: 11 June 1954
• Docket Number: No. 15508,15508
• Citation: Hammerstein v. Hammerstein, 269 S.W.2d 591 (Tex. Ct. App. 1954)
• Parties: HAMMERSTEIN v. HAMMERSTEIN.
• Court: Texas Civil Court of Appeals

Page 591

269 S.W.2d 591

HAMMERSTEIN v.HAMMERSTEIN.

No. 15508.

Court of Civil Appeals of Texas, Fort Worth.

June 11, 1954.

W. Scott Clark, Fort Worth, for appellant.

Robert Allen, Fort Worth, for appellee.

BOYD, Justice.

On April 23, 1954, we entered judgment affirming the judgment of the trial court.After further study of the case on motion for rehearing, we have reached the conclusion that we were in error in so doing.The former opinion is hereby withdrawn and the following substituted therefor.

In her original brief appellant states that she filed a plea in abatement to appellee's cause of action on the ground that appellee had not been a bona fide inhabitant of the State of Texas of twelve months and had not resided in Tarrant County for six months next preceding the filing of the suit, and that said plea was duly presented to the court and was overruled.Such statements in appellant's brief are not challenged by appellee and this Court need not look to the record but will accept appellant's statements as being correct.Rule 419, T.R.C.P.;Looney v. Traders & General Ins. Co., Tex.Civ.App., 231 S.W.2d 735;Donnelly v. Donnelly, Tex.Civ.App., 220 S.W.2d 278;Stewart v. Basey, Tex.Civ.App., 241 S.W.2d 353;Gonzales v. Gonzales, Tex.Civ.App., 224 S.W.2d 520;Morales v. Roddy, Tex.Civ.App., 250 S.W.2d 225;Young v. Howze, Tex.Civ.App., 216 S.W.2d 988;Leavell v. Lincoln County Mut. Fire Ins. Co., Tex.Civ.App., 243 S.W.2d 223;Allen v. Herrera, Tex.Civ.App., 257 S.W.2d 753.

Appellant's point for reversal is that the court erred in overruling the plea in abatement because the evidence shows conclusively that appellee does not have residential qualifications to maintain the suit, in that he has not been an actual inhabitant of the State of for twelve months, nor a resident of Tarrant County for six months, next preceding the filing of the suit.

Appellee is a soldier and is stationed at Carswell Air Field, in Tarrant County, Texas.He arrived there on August 5, 1952.He enlisted in the Army in Harrisburg, Pennsylvania, in 1931.In 1934he was discharged from the Army and returned to Harrisburg, living there until February 25, 1935, when he reenlisted.He was discharged on May 2, 1940, and returned to Harrisburg, where he lived until September, 1943, when he reenlisted.He was again discharged in February, 1946, and returned to Harrisburg, where he lived until he reenlisted on April 5, 1947.He has been in the Army continuously since then, and was stationed in various camps until being sent to the Philippines in September, 1950.From the Philippines he was transferred to Carswell Air Field.The last time he voted was in 1951 in Pennsylvania.Appellee testified that he intended to live in Fort Worth and make it his home after leaving the Army.The court asked him what his military records showed his home to be at the time of the trial, and he answered, 'Harrisburg.'The court asked further whether he had 'any other factor' to show intent to live in Fort Worth, other than his own testimony.He answered, 'No, sir.'There was no other testimony on the point.

In Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363, it was held that domicile is not changed by one's being stationed at a place in the line of duty while in the Army, unless the contrary is shown by clear proof.To the same effect is the holding in Pippin v. Pippin, Tex.Civ.App., 193 S.W.2d 236, 238.

"A soldier or sailor does not acquire a new domicile merely from being stationed at a particular place in the line of duty.His domicile remains the same as that which he had when he entered the service, unless he shows a change by proof of clear and unequivocal intention.'* * * ' 15 Tex.Jur., p. 716, sec. 6.

In Gallagher v. Gallagher, Tex.Civ.App., 214 S.W. 516, 518, the plaintiff was ordered to San Antonio by the Army in 1915, and lived there a year before serving in Mexico.He was ordered back to San Antonio in July, 1917, and there filed suit for divorce September 23, 1918.He testified he would retire in 1919 and intended to settle in San Antonio.The court said: '* * * He was in Bexar county, not of his own volition, but under the inexorable commands of military authority.* * * It would be a dangerous precedent to establish, and would open the floodgates for divorce seekers from all parts of the Union, if mere intention, unexpressed and uncorroborated by any evidence, can fix a domicile in the purview of our divorce statutes. * * *'

In Wilson v. Wilson, Tex.Civ.App., 189 S.W.2d 212, 213, the plaintiff was stationed at Sheppard Field in Wichita County for three years.He talked to a Mr. Norwood of Wichita Falls about going into business there after the war and talked to others about going into business in Texas.He and his wife lived in an apartment in Wichita...