Opinion
14440.
APRIL 15, 1943.
Divorce. Before Judge Byars. Muscogee superior court. November 4, 1942.
Joseph S. Ray, for plaintiff in error.
W. B. Skipworth Jr., and Joseph O. McGehee, contra.
1. "Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this State, then in the county in which the plaintiff resides." Code, §§ 2-4301, 30-107. In this petition for divorce by a husband, in which he alleged that he was "a resident of this State," and that the wife was a resident of another State, it was necessary to bring the suit in the county where the plaintiff resided.
2. These provisions as to venue in divorce cases are mandatory and jurisdictional; and as against demurrer should be alleged, and must be proved. Jurisdiction can not be conferred on the superior court of a different county by waiver or consent. A failure to make proof of the venue will render a verdict for divorce subject to be set aside by proper procedure. Haygood v. Haygood, 190 Ga. 445, 448 ( 9 S.E.2d 834), and cit.; Moody v. Moody, 195 Ga. 13 ( 22 S.E.2d 836), and cit.; Bellamy v. Bellamy, 187 Ga. 56, 58 ( 199 S.E. 745); Dicks v. Dicks, 177 Ga. 379, 382 ( 170 S.E. 245), and cit. Such proof is essential, even though the absence of this jurisdictional averment may be supplied by amendment. Owens v. Owens, 190 Ga. 191, 192 ( 8 S.E.2d 644), and cit.
( a) Since the record in this case fails to contain any averment or evidence as to the residence of the plaintiff husband in the county where the suit was brought against a resident of another State, it was error to refuse a new trial on the general grounds. The verdict being thus unsupported by essential evidence, it was unnecessary to raise the question by a special ground.
( b) Although the testimony of the plaintiff showed that he was an army officer, and he brought this petition in Muscogee County, adjoining Fort Benning military reservation, he did not allege that he was a resident in that reservation, but set forth merely that he was "a resident of the State," without any averment or proof as to his place of residence. Accordingly, no question is presented as to the proper venue under the constitution in a case of that character (Code, § 2-4301), or as to the constitutionality of the act of 1939 (Ga. L. 1939, p. 203; Code Supp. § 30-107), amending § 30-107, with reference to the filing of divorce petitions, by residents of those reservations, in adjacent counties. See, in this connection, Darbie v. Darbie, 195 Ga. post, and cit.
Judgment reversed. All the Justices concur.
No. 14440. APRIL 15, 1943.
William John Wade brought a suit for divorce against Eleanor Frances Wade, on the ground of desertion for more than three years since June 21, 1936. He alleged that he has been "a resident of the State . . for more than 12 months before the filing of the petition," and that the wife lived in another State, but he made no reference to the county or place where he resided. The wife, who was served by publication, filed in the name of a next friend an answer and plea in the nature of a cross-bill, in which she set up that in 1934 she had been adjudged insane and committed by a court in Ohio to a hospital; that she "is still laboring under said judgment and decree;" and that she "did not desert plaintiff, and, because of her mental condition and state, could not form an intention to desert said plaintiff." She further alleged, that she had become blind; that, although she had partially regained her sight, she was unable to adequately support herself; and that since the plaintiff, as a first lieutenant in the army, earned approximately $250 a month, she was entitled to temporary alimony and counsel fees for her defense. She prayed for a denial of a divorce to the plaintiff, but, if the jury granted him a divorce, that her disabilities be removed, and that she be awarded alimony.
After a first verdict for the plaintiff, the jury at the second trial also found for him, that a divorce be granted, and that the disabilities of both parties be removed, and awarded to the wife $40 a month "permanent alimony for the remainder of her life, unless she shall sooner remarry; whereupon the alimony is to cease." The wife excepted to the refusal of a new trial on the general grounds, and excepted specially to an instruction as to her insanity, as indicated, supra.
On the question of residence of the husband, he testified: "I have resided in the State of Georgia for more than twelve months before filing my petition." But he introduced no testimony as to the county or place where he lived; and there was no evidence showing whether or not he lived in the Fort Benning military reservation adjoining Muscogee County, where the suit was brought, or lived on land which had been a part of that county or a part of another county when ceded to the United States for such reservation.