Hare v. Hare

• Decision Date: 01 January 1853
• Citation: 10 Tex. 355
• Parties: HARE v. HARE.
• Court: Texas Supreme Court

10 Tex. 355

HARE

v.HARE.

Supreme Court of Texas.

1853.

The statute which authorizes service in certain events by publication, (Hart. Dig., art. 813,) extends to all suits, including suits for divorce.

On general principles the courts of this State would not take cognizance of suits for divorce where both of the parties reside beyond the limits of this State.

To maintain a suit for divorce on the ground of abandonment the law does not (as in case of adultery) require that both parties should have been inhabitants of the State at the time of the act which forms the ground of complaint; and whether the marriage was or was not solemnized abroad does not become an essential point of inquiry, except that under some circumstances that fact may become material as a constituent of the full and satisfactory evidence on which alone the courts are authorized to grant a divorce. If a marriage be contracted abroad, or, whether celebrated abroad or not, if the parties resided abroad at the time of the desertion of the one by the other with the intention of abandonment, and if subsequently the innocent party becomes an inhabitant of this State, and the desertion continues, it would form a substantial ground for divorce, and as such would be recognized and enforced by the laws of this State.

Although by fiction of law the domicile of the husband becomes that of the wife, and she is in general under the necessity of following him in his removals from place to place, and of making his home her place of abode, yet this is a rule not without its exceptions, and how far it may operate or be restricted when the husband chooses to abandon the government under which he has lived and transfer himself to another, it is not necessary now to discuss.

In a petition for divorce on the ground of abandonment it is not sufficient to state that the libellee unnecessarily and without sufficient cause abandoned the libellant; but the circumstances attending the desertion must be particularly stated, to show that it was really voluntary and without sufficient cause, and was the offensive desertion contemplated by the statute. (Note 70.)

Where there was a demurrer to a petition for a divorce showing as special cause of exception that the court had no jurisdiction, and the demurrer was sustained, the Supreme Court decided that the court had jurisdiction, but affirmed the judgment on the ground that the petition was defective for want of sufficient specification in the averments.

Appeal from Newton. This was an application for a divorce. The plaintiff, Alfred Hare, represented that in October, eighteen hundred and forty-eight, he was legally united in marriage with Elizabeth Stanley, (“now Elizabeth Hare,) and a resident citizen of the State of Alabama;” that they lived happily as man and wife until about the first of February, 1849, when the petitioner's wife suddenly and without any cause or provocation known to plaintiff forsook his bed and board, with the declared intention never to return; that his entreaties to induce her to return and live with him had been wholly disregarded. He then distinctly averred that the said Elizabeth “is now a resident of the State of Alabama,” distant several hundred miles from the residence of the plaintiff, which in the commencement of his petition he averred to be in Newton county, in this State. He prayed that the said Elizabeth be cited by publication, and for divorce and general relief.

Citation by publication was duly made, and the plaintiff subsequently amended his petition by reiterating the fact of voluntary, continued abandonment on the part of the said Elizabeth for three years preceding the institution of suit, and averring the plaintiff's residence for three years in the county of Newton.

The counsel appointed to represent the absent defendant demurred to the petition, showing as special cause of exception that the court had no jurisdiction. Demurrer was sustained and petition dismissed.

R. S. Walker, for appellant.

HEMPHILL, CH. J.

The grounds upon which this decision was made do not appear from the record. From the argument of the counsel for appellant it might be inferred that the special exception to the jurisdiction was sustained on the ground that the appellee was not a resident of the State, and that she could not as in ordinary cases be cited by publication.

The statutory provision authorizing absent defendants to be summoned by publication is general, extending to all suits. (Art. 813.) No exception in express terms or by implication exempts cases of divorce from the operation of the general rule. With regard to the...