Opinion
5 Div. 669.
May 9, 1957.
Appeal from the Circuit Court, Randolph County, Will O. Walton, J.
Hodges Aycock, Ashville, for appellant.
The bill shows on its face that respondent was a resident of Jefferson County, service being had upon her there. The place of residence and not the place of separation is the proper place to file a bill for divorce, unless the two concur. Pucket v. Pucket, 174 Ala. 315, 56 So. 585; Code 1940, Tit. 34, § 28. Demurrer on ground of improper venue should have been sustained. Prickett v. Prickett, 147 Ala. 494, 42 So. 408; Campbell v. Crawford, 63 Ala. 392; Harwell v. Lehman, Durr Co., 72 Ala. 344; Elmore County v. Tallapoosa County, 221 Ala. 182, 128 So. 158; Woolf v. McGaugh, 175 Ala. 299, 57 So. 754; Hammons v. Hammons, 228 Ala. 264, 153 So. 210.
E. Burns Parker, Roanoke, and H. M. Brittain, Wedowee, for appellee.
Divorce proceedings involving residents of the State may be filed either in the county where respondent resides or in county where parties resided when separation occurred. Code 1940, Tit. 34, § 28; Kemp v. Kemp, 258 Ala. 570, 63 So.2d 702.
The bill is by the husband against the wife seeking a divorce on the ground of voluntary abandonment and was filed in Randolph County, Alabama, the place of residence of the complainant. It is alleged that at the time the bill was filed the respondent was residing in Jefferson County. Demurrer to the bill was overruled and from that decree the wife has prosecuted this appeal.
The only question here argued relates to the matter of venue, the respondent wife insisting that the bill upon its face discloses it was not filed in the proper county. § 28, Title 34, Code 1940. If such appears upon the face of the bill the point may be taken by demurrer. Pucket v. Pucket, 174 Ala. 315, 56 So. 585; Hammons v. Hammons, 228 Ala. 264, 153 So. 210; Hooks v. Hooks, 251 Ala. 481, 38 So.2d 3, and cases cited.
When the husband and wife are both residents of the State of Alabama, divorce proceedings should be filed either in the county where the respondent resides or in the county where the parties resided when the separation occurred. § 28, Title 34, Code 1940; Hooks v. Hooks, supra, and cases cited.
The fourth paragraph of the bill presently under consideration alleges that both parties were residing in Randolph County when the separation occurred. This averment is sufficient to make the bill good as against ground of demurrer taking the point that the bill shows on its face that it was not filed in the proper county. Jackson v. Jackson, 246 Ala. 578, 21 So.2d 805.
Without further discussion, we express our conclusion that it cannot be here said that the bill discloses upon its face that it was filed in the wrong county.
It follows, therefore, that the decree of the court below overruling the demurrer is free from error and will accordingly be here affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.