Michael v. Michael

• Decision Date: 24 February 1904
• Citation: 79 S.W. 74
• Parties: MICHAEL v. MICHAEL.
• Court: Texas Court of Appeals

79 S.W. 74

MICHAEL v. MICHAEL.

Court of Civil Appeals of Texas.

February 24, 1904.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Rosa Michael against Leopold M. Michael and others. From a judgment in favor of plaintiff against defendant Michael, he appeals. Reversed.

C. K. Breneman and Chas. W. Ogden, for appellant. Carlos Bee, Geo. R. Gillette, Henry C. King, Jr., Wm. Aubrey, and W. A. Wurzbach, for appellee.

FLY, J.

This is a suit for divorce and partition of community property, instituted by appellee against her husband, Leopold M. Michael, the Michael Loan Company, R. Gabrieski, Louis M. Michael, and Sam Berliner, all but the husband being joined for the purpose of obtaining the annulment of alleged fraudulent transfers of property made to them by the husband. The court submitted the full case to the jury on special issues, which were all answered in favor of appellee, but the court only granted a divorce on the answers, and refused to enter a judgment as to the property. This appeal is perfected from the judgment granting a divorce.

Appellant filed a plea to the jurisdiction of the court, on the ground that appellee was not an actual bona fide inhabitant of the state of Texas, and had not resided in Bexar county for six months next preceding the filing of the suit. Jurisdiction, by the concurrence of English and American courts, in divorce suits, is founded on residence or domicile. Andrews v. Andrews (Mass.) 57 N. E. 333; Branch v. Branch (Colo. Sup.) 71 Pac. 632. The state of Texas has enacted laws regulating and controlling matters of marriage and divorce, and has prescribed rules as to domicile, as to procedure in trials, and as to rules of evidence which apply to no other class of cases in its courts. For instance, no other class of litigants is required to be residents of the state in order to have the authority to institute suits; in no other case, when the parties are in court, is a judgment by default forbidden, and a judgment permitted only "upon full and satisfactory evidence." In article 2978 of the Revised Statutes of 1895 it is provided: "No suit for divorce from the bonds of matrimony shall be maintained in the courts unless the petitioner for such divorce shall, at the time of exhibiting his or her petition, be an actual bona fide inhabitant of the state, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit." In article 3268 of the Revised Statutes of 1895 it is provided that in the construction of statutes the ordinary signification shall be applied to words, and in commenting on that provision the Supreme Court said: "It is the duty of a court to give to language used in a statute the meaning with which it was used by the Legislature, if this can be ascertained; and to do this, if the words used be not such as have a peculiar meaning when applied to a given art or trade with reference to which they are used in the statute, the only safe rule is to apply to them their ordinary meaning, for the Legislature must be presumed to have used them in that sense in which they are ordinarily understood; and if, so applying them, the legislation in which they are found seems to be harsh or not to embrace and give remedies for acts for which remedies ought to be given, the courts for such reasons are not authorized to place on them a forced construction for the purpose of mitigating a seeming hardship imposed by a statute, or conferring a right which the Legislature has not thought proper to give." Turner v. Cross, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262.

It is evident that if the plain, ordinary signification of the word "resided," used in the statute, is given to it, it would necessarily be construed to require an actual living in the county for six months immediately preceding the filing of the suit. The word "reside," in its ordinary sense, carries with it the idea of permanence as well as continuity. It does not mean living in one place and claiming a home in another. It does not mean a constructive or imaginary residence in Texas, while actually living in Illinois. It was intended by the statute not only to compel an actual, good faith inhabitancy of this state, but an actual residence in the county where the suit for divorce is instituted upon the part of the party seeking the divorce.

In the construction of similar statutes in several other states, it has been held that the residence contemplated by the statutes is an actual residence, and not a mere legal residence, or one based upon a mere intention to return to the state while residing elsewhere. In the case of Tipton v. Tipton, 8 S. W. 440, the Court of Appeals of Kentucky said: "There is a broad distinction between a legal and an actual residence. A legal residence (domicile) cannot, in the nature of things, coexist in the same person in two states and countries. He must have a legal residence somewhere. He cannot be a cosmopolitan. The succession to movable property, whether testamentary or in case of intestacy, except as regulated by statute; the jurisdiction of the probate of wills; the right to vote; the liability to poll tax and to military duty; and other things—all depend on the party's legal residence or domicile. For these purposes he must have a legal residence. The law will, from facts and circumstances, fix a legal residence for him, unless he voluntarily fixes it himself. His legal residence consists of fact and intention; both must concur; and when his legal residence is once fixed, it requires both fact and intention to change it. As contradistinguished from his legal residence, he may have an actual residence in another state or country. He may abide in the latter without surrendering his legal residence in the former, provided he so intends. His legal residence, for the purposes above indcated, may be merely ideal, but his actual residence must be substantial. He may not actually abide at his legal residence at all, but his actual residence must be his abiding place. His legal residence subjects him to the duties, and confers upon him the rights and privileges, above mentioned. * * * According to these views, we think that the residence required by the section of the Code means that of an actual residence, and that a mere legal residence in this state, with an actual residence out of the...