Opinion
2 Div. 143.
May 4, 1939.
Appeal from the Circuit Court, Sumter County, Benjamin F. Elmore, J.
Granade Granade, of Chatom, for relator.
The statutes requiring security for costs in suits by nonresidents are mandatory. Code 1923, §§ 7249, 7252. Testimony of the complainant, Mrs. Altman, that she intended to return and retain her citizenship in Alabama, should not have been allowed. A witness may not testify to an uncommunicated motive or intention. Baldwin v. Walker, 91 Ala. 428, 430, 8 So. 364; Ball v. Farley, 81 Ala. 288, 295, 1 So. 253. The evidence shows complainant left her husband's home in Alabama, carrying the four minor children of the parties to her former home in Mississippi, where she has since actually lived and resided. Her intention can only be drawn from her actions. The circuit court in Alabama would be impotent to enforce any decree as to her, and respondent would be helpless in event relief should be awarded to him. Caheen v. Caheen, 233 Ala. 494, 495, 172 So. 618. Mandamus is the proper remedy for refusal of the circuit judge to require security for costs. First Nat. Bank v. Cheney, 120 Ala. 117, 23 So. 733; Ex parte Robbins, 29 Ala. 71. While formerly it was held that the husband fixed the domicile of the wife, it is now held that where the husband and wife are living apart, both husband and wife may have separate domiciles even in case of divorce. Norris v. Norris, 224 Ala. 678, 141 So. 672; Ex parte Allan, 220 Ala. 482, 125 So. 612; Martin v. Martin, 173 Ala. 106, 55 So. 632. Residence, as used in the divorce statutes, is equivalent to domicile, means legal residence or domicile for such purposes. Caheen v. Caheen, supra; Allgood v. Williams, 92 Ala. 551, 8 So. 722. Domicile of a party is a mixed question of law and fact — intention must be drawn by the court from all the facts and circumstances of the particular case. There must be a present intention of a party to return at the time of leaving the former domicile. Caheen v. Caheen, supra; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Caldwell v. Pollak, 91 Ala. 353, 8 So. 546; Merrill's Heirs v. Morrissett, 76 Ala. 433; Young v. Pollak, 85 Ala. 439, 5 So. 279. A person cannot have but one domicile at a time. And domicile once acquired is presumed to continue until a new one is gained facto et animo. Glover v. Glover, 18 Ala. 367; Caheen v. Caheen, supra.
McQueen McQueen, of Tuscaloosa, for respondent.
The statutes do not require residents to give security for costs merely because they are temporarily absent from the State, but without intent to change residence. Davis v. Brandon, 200 Ala. 160, 75 So. 908. A person asserting a change of domicile has the burden of proof as to that issue. McLeod v. Adams, 218 Ala. 424, 118 So. 636; Caheen v. Caheen, 233 Ala. 494, 172 So. 618. A domicile once acquired is presumed to continue until a new one has been established facto et animo. Glover v. Glover, 18 Ala. 367; Lucky v. Roberts, 211 Ala. 578, 100 So. 878; Holmes v. Holmes, 212 Ala. 597, 103 So. 884. Domicile is a mixed question of law and fact based on intention. Caheen v. Caheen, supra.
The proceedings here is upon petition of John A. Altman, defendant in a certain cause pending in the Circuit Court of Sumter County, wherein Mrs. Dorothy Altman is complainant and the said John A. Altman is defendant, for mandamus directed to Hon. Benjamin F. Elmore as Judge of the Circuit Court of Sumter County, Alabama, requiring the said Elmore, as such judge, "to make and enter an order" in the above mentioned cause, requiring the complainant therein to give or furnish security for the cost of said suit. The insistence of the petitioner is that the complainant in said cause was, at the time the suit was instituted, a nonresident of the State of Alabama, or, that since the filing of said suit, the complainant has ceased to be a resident of Alabama and has established a residence in the State of Mississippi.
In the court below, the said John A. Altman filed two successive motions to require the complainant to give security for the cost in the cause so brought by the complainant against him. In said cause the complainant sought divorce and alimony, and also the custody of four minor children, the products of the marriage union between complainant and petitioner.
Petitioner's motions filed in the circuit court were predicated upon averments that the complainant was a nonresident of the State of Alabama, and actually resided at Enterprise, in the State of Mississippi.
These motions were duly set down for hearing and heard by the court. At the hearing in each instance the complainant appeared, and denied that she was a nonresident of the State, but insisted that she was then, and had been for a number of years, a resident of the State of Alabama, though she admitted upon each hearing that she was at the time living with her father and mother at Enterprise, Mississippi, but further insisted that her absence from Alabama was temporary, and, in legal effect, was due to compulsion, or involuntary.
Section 7249 of the Code provides: "All suits at law or in equity, commenced by or for the use of a nonresident of this state, must be dismissed on motion, if security for cost, approved by the clerk or register, be not given by such nonresident when the suit is commenced, or within such time thereafter as the court may direct."
And Section 7252 of the Code provides: "If suit be commenced by or for the use of a resident, who afterwards removes from the state, the defendant, by motion to the court, or by notice to the plaintiff, his agent, or attorney, or solicitor, may require security for costs; and if such security be not given within thirty days after such notice or order of the court, the suit must be dismissed."
These statutes are, of course, mandatory.
In our recent case of Caheen v. Caheen, 233 Ala. 494, 172 So. 618, 619, which was a divorce proceedings, the observation is made: "The decisions are to the effect that 'residence' as used in such statutes is the equivalent of domicile; residence means legal residence or domicile for such purposes. Allgood v. Williams, 92 Ala. 551, 8 So. 722; Metcalf v. Lowther's Executrix, 56 Ala. 312. It is therefore a mixed question of law and fact, depending upon the bona fide intention of the party. In Holmes v. Holmes, 212 Ala. 597, 599, 103 So. 884, 886, it was declared: 'A domicile once acquired is presumed to continue until a change, facto et animo, is shown. Bragg v. State, 69 Ala. 204. If there was a change, there must have been both an abandonment of his (decedent's) former domicile with no present intention to return, and the establishment of another place of residence with intention to remain permanently, or, at least, for an unlimited time; the former may be inferred from the latter. Allgood v. Williams, 92 Ala. 551, 8 So. 722; Caldwell v. Pollak, 91 Ala. 353, 8 So. 546; Young v. Pollak, 85 Ala. 439, 5 So. 279; Merrill's Heirs v. Morrissett ( 76 Ala. 433).' "
In Lucky v. Roberts, 211 Ala. 578, 100 So. 878, 879, it was held: "It is established in this jurisdiction that a person's domicile is that place in which his habitation is fixed, without any present intention of removing (Merrill's Heirs v. Morrissett, 76 Ala. 433), and it embraces (1) the fact of residence (Curry v. Barnes, 200 Ala. 256, 76 So. 22) and (2) the intention to remain (Young v. Pollak, 85 Ala. 439, 5 So. 279; State v. Hallett, 8 Ala. 159; Glover v. Glover, 18 Ala. 367. ) It has been further declared that for the purpose of succession (a) a person can have but one domicile (Merrill's Heirs v. Morrissett, supra; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Johns v. Cannon, 199 Ala. [138] 144, 74 So. 42; Curry v. Barnes, supra), and (b) when once acquired is presumed to continue until a new one is gained facto et animo (Glover v. Glover, supra; State v. Hallett, supra; Bragg v. State, 69 Ala. 204), and (c) what state of facts constitute a change of domicile is a mixed question of law and fact (Murphy v. Hunt, Miller Co., 75 Ala. 438)."
And in the case of Murphy v. Hunt, Miller Co., 75 Ala. 438, it was said: "What state of facts shall be deemed to constitute a change of domicil may be considered a mixed question of law and fact, and is one proverbially difficult to determine, owing to the doubtful interpretations of human conduct. It is universally admitted that such a change is never effected by intention alone. It can be accomplished only by a completed act, done with the purpose of consummating a permanent removal from the original domicil, animo manendi. The old domicil continues until a new one is acquired facto et animo. — State v. Hallett, 8 Ala. 159; Glover v. Glover, 18 Ala. 367; Story's Confl. Laws, § 47; Talmadge v. Talmadge, supra. ( 66 Ala. 199). A change of domicil can not be inferred from an absence which is shown to be temporary, and attended with the requisite animus revertendi. — McConnaughy v. Baxter, 55 Ala. 379; Kelly v. Garrett, 67 Ala. 304. The intention to return is usually the controlling element in the determination of the whole question. Lehman v. Bryan, 67 Ala. 558." (Parenthesis supplied.)
We shall not attempt to enter upon a detailed discussion of the evidence. It would serve no useful purpose. The trial judge was of the opinion, after hearing the evidence, that the complainant was not a nonresident of the State of Alabama, and, carrying that opinion into effect, overruled each of the two successive motions of the defendant-petitioner, and declined to require the complainant to give security for cost in the case.
Under our concept of "domicile," largely due to modern multiple residence situations, it was open to the trial judge to reach the conclusion that complainant was a legal resident of Alabama, and that her present sojourn in the State of Mississippi was temporary. In other words, there was substantial evidence to support the ruling of the trial judge. This evidence was given ore tenus in open court. The finding of the trial court, therefore, under our established rule, is entitled to be given the weight that we accord to the verdict of a petit jury. Caples v. Young, 206 Ala. 282, 89 So. 460; McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917.
A careful consideration of the evidence fails to satisfy us that it so greatly preponderates against the judgment of the trial court as to stamp that judgment and decree as not only erroneous, but unjust. We will not, therefore, disturb the decree of the trial court. Mandamus must accordingly be denied, and the rule heretofore issued will be discharged. It is so ordered.
Mandamus denied.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.