Johnson v. Johnson
| Decision Date | 03 January 1877 |
| Citation | 75 Ky. 485 |
| Parties | Johnson v. Johnson. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CHANCERY COURT.
RUSSELL & HELM FOR APPELLANT.
1. S 4, A. 3, C. 52, G. S., provides " that an action for divorce must be brought in the county where the wife usually resides, if she has an actual residence in the state," etc.
2. That in this case the residence of the husband was the residence of the wife at the time of the institution of this action (Allen v. Allen, MS. Opinion, Sept. 25, 1867), and that this question must be tried as of that date.
3. If the statute required the action to be brought in the county where the wife was staying at the time of the institution of the action, the husband waived his right to object to the jurisdiction of the court by appearing and filing his answer and failing to object to jurisdiction. The Louisville Chancery Court clearly had jurisdiction of the subject-matter.
4. As to appellant's rights, see Shuck v. Shuck, 7 Bush, 307.
J. G WILSON FOR APPELLEE.
1. In contemplation of S. 4, A. 3, C. 52, G. S., the residence of appellant was in the county of Bullitt.
2. The rule of the common law that the residence of the wife is that of the husband is changed by our statutes in divorce suits.
3. The affirmative positive law is that no petition for a divorce shall be taken as confessed; and if actually confessed, yet no divorce can be granted without legal grounds proven by witnesses. (Civil Code, sec. 459.) That objection to jurisdiction by demurrer or answer was not necessary in this case.
4. A confirmed habit of drunkenness must be accompanied by two things and be of at least one year's duration. If it be not of one year's duration, although it may be accompanied by both those things, a divorce can not be granted. If it be of one year's duration and be unattended with either the wasting of estate or the failure to make suitable provision for the wife and family, no divorce can be granted.
The appellant left the home of her husband, the appellee, in Jefferson County, and went to the house of her father in Bullitt County, September 28, 1875, and has remained there ever since. October 1st of the same year she brought this suit in the Louisville Chancery Court for a divorce a vinculo matrimonii.
The appellee appeared and answered, proof was taken, and without any formal objection, by demurrer, answer, or otherwise, to the jurisdiction of the court, the chancellor, doubting his jurisdiction, followed a precedent of one of his predecessors, and dismissed the petition for want of jurisdiction, and this appeal is prosecuted to reverse that judgment.
The Louisville Chancery Court has general chancery jurisdiction and has therefore general jurisdiction of the subject-matter of the suit; and the failure of the appellee to make formal objection to the jurisdiction of that court of this particular case was a waiver of any objection that may have existed to the jurisdiction of the court of his person, and was tantamount to an express consent on his part that the case might be tried in that court; and it had jurisdiction unless, under section 4, article 3, chapter 52, of the General Statutes, the Bullitt Circuit Court had exclusive jurisdiction on account of the appellant's abode there when the suit was commenced.
The statute reads as follows: " Action for a divorce must be brought in the county where the wife usually resides, if she has an actual residence in this state; if not, in the county of the husband's residence."
It is contended that the appellant, on account of her stay at her father's house in Bullitt County, had acquired a residence there, and that in that event the statute is peremptory and the suit could not be lawfully brought elsewhere.
It is well settled that the domicile of the husband is the only legal domicile of the wife, and that she can not change her domicile without his consent; but she may leave him and change her residence. (Maguire v. Maguire, 7 Dana, 181.)
The statute was evidently not enacted in order to make the jurisdiction local to the county where the parties resided at the time the cause for a divorce arose, nor with any view to the convenience of obtaining evidence, nor with the design to have the trial in the vicinage where the parties would be best known or where all the facts would be most likely to be developed. If these were the purposes for which the statute was made, it would be in the power of parties, by removing to defeat those purposes and to remove the jurisdiction to the remotest county of the...
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