Thomas v. Newell, Circuit Judge

• Decision Date: 21 April 1939
• Citation: 277 Ky. 712
• Parties: Thomas v. Newell, Circuit Judge.
• Court: United States State Supreme Court — District of Kentucky

277 Ky. 712

Thomas v. Newell, Circuit Judge.

Court of Appeals of Kentucky. In Court of Appeals.

February 17, 1939.

As Modified on Denial of Rehearing April 21, 1939.

1. Divorce. — Where wife told husband that she was going to leave him, and did so the following day, going to her mother's home in another county, that county was county of wife's residence, wherein husband was required under statute to bring his divorce suit (Civil Code of Practice, sec. 76).

2. Courts. — The Court of Appeals had original jurisdiction of prohibition proceedings to prohibit circuit court judge from proceeding with divorce suit, which had not been filed in county of wife's residence, as required by statute, as against contention that adequate remedy by appeal existed (Civil Code of Practice, sec. 76).

HAGAN & HAGAN, JOHN H. DOUGHERTY and BROWNING, ZEIGLER & COCHRAN for petitioner.

B.S. GRANNIS, O.R. BRIGHT, RUSSELL PORTER and ROBERT P. HOBSON for respondent.

OPINION BY CHIEF JUSTICE THOMAS.

Making temporary writ permanent.

By this original action filed in this court petitioner, Jessie May Thomas, seeks to prohibit respondent, Hon. Charles D. Newell, Judge of the Mason circuit court, from further proceeding to try and determine the case pending before him in that court, styled "Stanley Thomas v. Jessie May Thomas," upon the ground that respondent's court has no jurisdiction of that action because when it was filed (it being a divorce action filed by plaintiff therein against petitioner herein) the petitioner was a resident of Jefferson county, Kentucky, and under Section 76 of the Civil Code of Practice a divorce action "must be brought in the county where the wife usually resides, if she have an actual residence in this State; if not, in the county of the husband's residence." It will thus be seen that the section localizes such an action and requires it to be brought in the county of the wife's residence, if she has one in this state; otherwise it may be brought in the county of the husband's residence if he resides in the state.

Petitioner filed a special demurrer in the Mason county action, and also a plea in abatement thereof, in the latter of which she stated that at the time the husband's divorce action was filed in the Mason circuit court she was a resident of Jefferson county, Kentucky, and before he filed it against her she had prepared her petition against him for a divorce to be filed in the Jefferson circuit court, which filing was done the next day after the filing of her husband's petition in the Mason circuit court on the late afternoon of that day, but which fact she did not know at the time her petition was filed in the Jefferson circuit court, nor was she made aware of the filing of her husband's petition for something like a month thereafter. A hearing was had before respondent upon the preliminary issue of venue jurisdiction, at which testimony was heard, which was transcribed and has been made a part of this record. At its close respondent announced his conclusion that the Mason circuit court possessed jurisdiction of the case of Stanley Thomas v. petitioner pending in that court; but before an order was made and signed to that effect this original action in this court was filed by petitioner to prohibit respondent from further proceeding in the case or making any orders therein, except one abating it for want of jurisdiction in the Mason circuit court.

The pleadings and the proof develop substantially these facts: That the parties were married in 1931 and lived the greater part of their married life up to 1936 in the city of Louisville, Kentucky — part of the time in a residence owned by the husband, and part of the time in one owned by the mother of his wife, the petitioner. At that time the husband was an agent for the Kentucky Central Life Insurance Company, a domestic corporation, with headquarters and home office in the city of Louisville. In the year referred to he was made superintendent of agents in a prescribed district composed of some counties in the state of Ohio across the river from Maysville, Kentucky, and a number of counties in central Kentucky with headquarters at Maysville, to which place the parties moved and rented an apartment where they kept house. The chief duties of the husband in the latter position consisted of superintending of agents under his jurisdiction, and were largely inspection duties, causing him to visit the various agents under his authority and which kept him away from home a large part of the time. Before the last separation hereinafter referred to there had been three prior ones, following some of which, if not all, the wife filed divorce actions against her husband which, we gather from the record, were based upon the ground of cruelty and infidelity; but on each occasion he promised to reform and repent and the disturbances were dropped by mutual consent.

Some days before August 29, 1938, while the husband was away from home in the discharge of the duties of his position with the insurance company, the wife (petitioner) found a batch of letters somewhere in the residence addressed to her husband and written by one Mrs. Lillie Mae Bean, who resided in Dayton, Ohio, and who appears to have been either the agent or in some way connected with the local agency of the Kentucky Central Life Insurance Company at that place and which was within the jurisdiction of the husband. It is intimated that those letters, though not copied in the record, were very endearing and affectionate, and as interpreted by petitioner (wife) they portrayed a relationship between the writer and addressee not altogether conforming with upright conduct or the degree of moral fidelity due from a husband to his wife. The discovery appears to — and no doubt did — very much disturb her and she sent a telegram to Mrs. Bean, signing her husband's name thereto, requesting her to come to his residence in Maysville at once; but she did not inform her husband of what she had done. On that night, at about 11 o'clock, Mrs. Bean appeared at the residence but to the great astonishment of the husband, and soon thereafter the storm began to rage, which lasted the major part of the night, with only the three of them present so far as the record discloses, up to 3 o'clock, when the husband took Mrs. Bean and carried her to the depot where she took a train back home. It would serve no useful purpose to undertake to detail what occurred at that time, except the wife stated — and she was not contradicted — that she did not go to bed, nor did she sleep any at all.

Between 7 and 8 o'clock the next morning petitioner consulted one Russell Porter, the only attorney she knew in Maysville, and laid before...