Wynn v. Wynn
| Decision Date | 15 May 1923 |
| Docket Number | (No. 2700.) |
| Citation | 251 S.W. 349 |
| Parties | WYNN v. WYNN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hopkins County; Geo. B. Hall, Judge.
Suit by Nettie Wynn against George Wynn. From a decree for plaintiff, defendant appeals. Affirmed.
Dial, Melson, Davidson & Brim, of Sulphur Springs, for appellant.
Connor & Ramey, of Sulphur Springs, for appellee.
This appeal is from a judgment granting appellee, plaintiff in the court below, a divorce from appellant on the ground of cruel treatment by him toward her, and directing a partition of property which the court found belonged to the community estate between them.
The findings of the jury on special issues submitted to them warranted the judgment rendered. Appellant does not contend to the contrary, but insists the judgment should be reversed because, first, he says it did not appear from the allegations in appellee's petition that she was entitled to maintain the suit; and, second, because he says the findings of the jury were not supported by the testimony.
The statute provides that no suit for divorce shall be maintained "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 for a period of twelve months, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit." Article 4632, Vernon's Statutes, as amended in March, 1921. In her petition appellee alleged that she "is a bona fide inhabitant of the state of Texas, and has been for more than 12 months prior hereto, and she is a resident of Hopkins county, and has been for more than 6 months prior hereto."
The contention that the allegations in the petition did not show a right in appellee to maintain the suit is predicated on her failure to allege that she was an actual bona fide inhabitant of the state for the time specified. We think the allegation was sufficient, and that the authorities cited by appellant, to wit, Motes v. Motes (Tex. Civ. App.) 229 S. W. 432, and Gould v. Gould (Tex. Civ. App.) 244 S. W. 574, do not hold to the contrary. The ruling in the Motes Case was based on the fact that the plaintiff did not allege that she had been an inhabitant of the state for twelve months, "but only," the court said, "that she was such inhabitant at the time the suit was filed." The allegation in the petition in the Gould Case was that the plaintiff was a bona fide inhabitant of the state, and had resided therein for more than twelve months. The ruling was, in effect, that the allegation that the plaintiff had "resided in the state for more than 12 months" did not show that she was an actual bona fide inhabitant of the state during that time. It is apparent that, on the view the court took of the allegation, it was merely, as in the Motes Case, that the plaintiff was an inhabitant of the state only at the time she filed her suit. The objection urged to the petition in the instant case was the same as that urged in Coward v. Stufin (Tex. Civ. App.) 185 S. W. 378, it seems. It was overruled in that case on the ground that the allegation was a substantial compliance with the requirement of the statute. "Inhabitant" as used in the statute, we think, means one who dwells in this state as distinguished from one who merely visits it expecting to leave when the purpose of the visit is accomplished. "A bona fide inhabitant" is, we think, necessarily an "actual" inhabitant; and an allegation in a petition in a divorce suit that the plaintiff is "a...
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