May v. May

• Decision Date: 29 September 1930
• Docket Number: 28773
• Citation: 158 Miss. 68,130 So. 52
• Court: Mississippi Supreme Court
• Parties: MAY v. MAY

130 So. 52

158 Miss. 68

MAY v. MAY

No. 28773

Supreme Court of Mississippi

September 29, 1930

Division A

1 DIVORCE.

Under divorce statute, domicile once acquired is presumed to continue, and burden of proving contrary is upon party alleging it (Hemingway's Code 1927, sections 1485, 1487).

2 DIVORCE. Husband's absence from state for purpose of study pursuant to scholarship held not "abandonment" of domicile, and therefore chancery court had jurisdiction of divorce suit (Hemingway's Code 1927, sections 1485, 1487).

Defendant husband was born and reared in Lincoln county, Mississippi. After graduation from college he received scholarship for further study and practical training from company which desired to secure highly trained and skilled employees for its business. Husband had always maintained his home and domicile at the home of his father. Shortly after husband's graduation from college he and plaintiff wife were secretly married, and after marriage wife returned to her father's home, and husband immediately left for another state to begin work pursuant to scholarship. After parents discovered marriage, wife went to live with husband for a few weeks. Husband intended to ultimately accept employment with company after he completed required course but had no idea where he would be located; entire matter being subject to the control and determination of prospective employer.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Lincoln county, HON. V. J. STRICKER, Chancellor.

Suit by Mrs. Alice Burt May, by her father as next friend, against M. W. May, Jr. From a decree dismissing the bill, complainant appeals. Reversed and remanded.

Reversed and remanded.

Brady, Dean & Hobbs, of Brookhaven, for appellant.

The sole question to be determined by this court is whether the complainant and defendant were both domiciled within this state when suit was commenced.

It is perfectly clear from the record in this case that the appellee was a student at the Agricultural and Mechanical College of the state of Mississippi, and in Pittsburgh, Pennsylvania, under a scholarship which he won and that he could not have had a domicile within the meaning of that term as defined by this court at Pittsburgh, Pennsylvania.

The civil law defines domicile to be placed where the domestic hearth has been established from which the resident does not depart, except for a temporary purpose and animo reverti.

Collier v. Chamblee, 136 Miss. 257; McHenry v. State, 119 Miss. 289; Clay v. Clay, 134 Miss. 658.

In determining the question whether appellant was domiciled in this state at the time of the filing of her bill, the further principle of law should be considered that, when a domicile is once acquired, it is presumed to continue, and the burden of proving to the contrary is upon the party alleging it. Clay v. Clay, 134 Miss. 658.

OPINION

Cook, J.

The appellant, by her father as next friend, filed a bill of complaint in the chancery court of Lincoln county, Mississippi, seeking a divorce from her husband, M. W. May, Jr., on the ground of cruel and inhuman treatment. Upon the proof offered at the trial of the cause, the court dismissed the bill of complaint on the ground that it did not have jurisdiction of the parties, and from this decree this appeal was prosecuted.

The bill of complaint charged that both the appellant and the appellee were residents of, and domiciled in, Lincoln county, Mississippi, at the time of the filing thereof, but that the appellee was then absent from the state so that process could not be served on him; that he was then in Pittsburgh, Pennsylvania, pursuing a course of study and practical training in electrical engineering, provided by the Westinghouse Electric Company, the circumstances under which he secured the opportunity of taking this course being set forth in detail. There was proper publication for the absent defendant, and also a summons filed in the office of the chancery clerk of Lincoln county, Mississippi, with the acknowledgment of the defendant that it was personally served on him indorsed thereon; this acknowledgment of service having been signed by the defendant at Edgewood, Pennsylvania, on October 15, 1929, before a witness whose affidavit to that effect was thereto attached.

The proof shows that the appellee was born and reared near Brookhaven, in Lincoln county, Mississippi, and that he attended the Mississippi Agricultural and Mechanical College from which he graduated with a high scholastic average. After a competitive examination conducted by a representative of the Westinghouse Electric Company, he was chosen to receive a scholarship for further study and practical...