Clay v. Clay

Anderson, J.,

delivered the opinion of .the court.

Appellant, Mrs. Myrtle Clay, filed her bill in the chancery court of Attala county against appellee Alexander Clay, her husband, a nonresident of this state, for divorce and alimony, temporary and permanent.

Appellant’s bill contained all the statutory requirements. Appellant, sought to bring her case for divorce *661 under paragraph (b) of section 1675, Code of 1906, section 1417, Hemingway’s Code. Under the allegations of her bill and under the evidence, the trial court was without jurisdiction under either of the other paragraphs of said section. That part of the statute under which appellant sought to bring her cáse is in the following language :

‘ ‘ The jurisdiction of the chancery court in suits for divorce shall be confined to the following classes of cases: . . . (b) Where the complainant was domiciled within this state when the suit was commenced, and the defendant was personally served with process within this state. ’ ’

Appellee appeared and pleaded to the jurisdiction of the court and then was permitted by the court to withdraw such plea. In the taking of the deposition of appellant, appellee’s attorney filed eross-interrog'atories. Appellant’s deposition was read to sustain the allegations of the bill. The trial court dismissed appellant’s bill on the ground that it was without jurisdiction because it found from the evidence that appellant was not domiciled in this state at the time of the filing of her bill. Appellant alleged in her bill, and the evidence tended to establish the fact, that appellant and appellee at the' time of their separation had a home and a domicile where they resided in Attala county in this state; that after the separation appellee left the state and became a nonresident thereof and was such at the time of the filing of the bill; that some time after the separation appellant, in order to support herself and her infant child, left the state and got employment in California, where at the time of the filing of the bill and the trial she was residing with her child engaged in work which yielded them a support; that she had been out of the state so eng-aged for' about a year. Appellant testified, and there was no testimony to the contrary, that her permanent home was in Attala county in this state, where she and her husband resided at the time of their separation and had resided for some time *662 prior thereto; that she still considered that her permanent home; that she had no other; that she expected to return to it and reside there as soon as her financial affairs would permit it; that her employment in California was temporary.

The first question is whether appellant was domiciled in this state when she filed her bill. In ordinary acceptation the term “domicile” means the place where a person lives and has his home. It is the place where he has his true fixed and permanent home and establishment and to which whenever he is absent he has the intention of returning. Hairston v. Hairston, 27 Miss. 704 , 61 Am. Dec. 530 ; 19 C. J. section 2, pp. 395, 396. 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. 19 C. J., section 66, pp. 431, 432. At the time of their separation, as stated, appellant and appellee had a domicile in this state, which appellant still claims as her domicile. Until the contrary is shown, the presumption is that it has continued to be her domicile. There is no evidence to show that it has not, except appellant’s mere absence from the state and the circumstances attending the same. On the contrary, her testimony is to the effect that she had not acquired a domicile elsewhere and her domicile in this state had never been abandoned. What evidence there is in the record is without conflict. We hold therefore that it was sufficiently established that appellant was domiciled in this state when she began her suit..

The next question is whether or not there was a lack of jurisdiction in the trial court because appellee was not personally served with process within this state. The record shows that appellee was a nonresident of the state and was made a party by publication of notice as required by law, but afterwards appeared by counsel and filed a plea to the jurisdiction of the court, which later he with *663 drew, and also filed cross-interrogatories to appellant in the taking of her deposition. As far as results are concerned, personal appearance by a defendant in a cause gives the court jurisdiction of his person as completely as if he had been personally served with process within this state. We hold, -therefore, that appellant’s case is brought within said provision of the statute.

Reversed and remanded.