Opinion
8 Div. 799.
April 28, 1955.
Appeal from the Law and Equity Court of Franklin County, W. H. Quillin, J.
Howell Thomas Heflin, Tuscumbia, for petitioner.
Mandamus is the proper method to review a decree denying a plea in abatement to venue of a divorce action. Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510. In such action the venue is either the county of defendant's residence or the county in which the parties resided when the separation occurred. Code 1940, Tit. 34, § 28. For venue to be in the county of separation, both parties must have resided or had legal residence in such county at the time the separation occurred. The preponderance of the evidence in this case shows that petitioner was never a resident of the county in which the action was brought. Ex parte Weissinger, supra; Pucket v. Pucket, 174 Ala. 315, 56 So. 585; Caheen v. Caheen, 233 Ala. 494, 172 So. 618; 28 C.J.S., Domicile, § 16, p. 36.
H. Neil Taylor, Russellville, for respondent.
Sufficiency of plea to jurisdiction should be determined on final submission and on appeal from final decree. Prowell v. Wilson, 219 Ala. 645, 123 So. 38. The burden of proof as to the plea was upon defendant. Thompson v. State, 247 Ala. 585, 25 So.2d 671. A presumption will be indulged in favor of the conclusion as to the plea. Taylor v. Hoffman, 231 Ala. 39, 163 So. 339; Spradling v. May, 259 Ala. 10, 65 So.2d 494.
This is an original petition by Giles Homer Lewis praying that a writ of mandamus be issued to Hon. W. H. Quillin, as Judge of the Law and Equity Court of Franklin County, in Equity, directing him to set aside a decree denying petitioner's plea in abatement to the venue of a divorce suit against him and to render a decree sustaining such plea. The circumstances leading up to the filing of the petition here, as shown by the petition, are as follows:
On October 20, 1954, petitioner's wife filed in the Law and Equity Court of Franklin County, in Equity, a bill of complaint against petitioner seeking a divorce from the bonds of matrimony. The bill alleges that petitioner (respondent to the bill) "is a resident of Colbert County, Alabama, his address being 102 East McIntosh Street, Sheffield, Alabama", and that the parties "separated in Franklin County, Alabama, on or about November 1, 1953", and "have not co-habited since that date". Petitioner filed a plea in abatement alleging that he "is a resident of Colbert County, Alabama, and that the separation between the complainant and respondent occurred in Colbert County, Alabama, and not in Franklin County, Alabama, as is alleged in the bill of complaint". Evidence on the merits of the plea was taken orally before the court, after which a decree was rendered denying the plea. Petitioner then filed his petition for mandamus here. The propriety of mandamus, as a method of reviewing the ruling on the plea, was first established in Ex parte Weissinger, 247 Ala. 113, 118, 119, 22 So.2d 510. And that holding has been followed in later cases. Ex parte Stroud, 248 Ala. 480, 482, 28 So.2d 316; Ex parte Davis, 249 Ala. 221, 223, 30 So.2d 648.
The venue statute applicable to the situation here is Code 1940, Tit. 34, § 28, which requires the filing of a bill for divorce against a resident defendant in the county "in which the defendant resides" or in the county "in which the parties resided when the separation occurred". Thus, the determinative question for decision is whether the trial court erred in finding, in effect, that the parties resided in Franklin County when the separation occurred. That being a factual issue resolved by the trial court against petitioner, after an oral hearing of the evidence by the court, such finding has the effect of a jury's verdict, and we would not be warranted in disturbing it unless we can say that it was plainly and palpably wrong. This we are unable to do. Kemp. v. Kemp, 258 Ala. 570, 571, 63 So.2d 702; Crittenden v. Crittenden, 256 Ala. 219, 220, 54 So.2d 489; Ex parte Davis, supra; Sills v. Sills, 246 Ala. 165, 169, 19 So.2d 521; Taylor v. Hoffman, 231 Ala. 39, 40, 163 So. 339; Caples v. Young, 206 Ala. 282, 284, 84 So. 460.
We have carefully examined and considered the evidence in consultation. While there are conflicting tendencies as to petitioner's intention with respect to establishing a permanent residence in Franklin County, we think there is ample evidence to support the trial court's finding that petitioner intended a permanent change of residence to Franklin County, and that both parties resided in Franklin County when the separation occurred. We see no good purpose to be served in detailing the evidence. Suffice it to say that the evidence is without dispute that petitioner, who lived in his mother's home in the City of Sheffield, in Colbert County, quit his job there in a pool room and moved to the City of Russellville, in Franklin County, a distance of approximately 21 miles, and there took up residence with his wife's mother and father. As to whether the move was temporary for the purpose of permitting the wife to be with her parents at the birth of her child, as contended by petitioner, or was a permanent change of residence, as claimed by the wife, the evidence is in conflict. This conflict was resolved by the trial court against petitioner's contention after having the benefit of personal observation of the witnesses while testifying. The trial court thus was in better position than we to determine the conflicting tendencies of the evidence. We do not find sufficient basis for setting aside that court's finding from the evidence.
Writ denied.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur.