The opinion
On Motion for Rehearing.
If appellee ever indicated to any one, during his enforced stay as a soldier in Bexar county, that the county named was the place of Ms domicile, or ever would be, the record fails to disclose it, and we have only the uncorroborated statement of the appellee, made only when called as a witness, that he intended to make San Antonio his place of domicile at some uncertain time in the future. He speaks of having brought his household goods with him to San Antonio, but the evidence fails to show that he had any household goods. He lived in boarding or rooming houses, and he testified that he had no “real estate or anything of that kind.” He stated his personal property “is some curios I háve saved all the time that I was away that I prize very much. I risked my life several times in getting them when I was chief of police and sheriff under Pershing, in Mindanao — bolos and knives.” These curios would hardly be termed household goods, and having them in San Antonio would be no evidence of domicile in that city. Appellee stated that he and wife had no property rights to adjust.
The authorities called to our notice as to the right of a soldier while in the military service to select a domicile are very sparse indeed, and in one of them it is stated that in order to show the selection of such domicile there must be the “clearest and most unequivocal proof.” Can the uncorroborated and interested testimony of a plaintiff in a divorce suit be held to furnish the “clearest and most unequivocal proof”? The fact that appellee has been in Bexar county for more than a year furnishes no corroboration to his testimony, as he has been living here because so ordered by his superior officers, and not of his own volition. And to no human being has he ever whispered “This is my home.” What is there fixed and established with which his intention to acquire a domicile is associated? Not one thing. His may be a hard case, but the law should not be warped and bent to meet hard cases.
[5] The proof as to inhabitancy of the state and residence in the county is as essential as any other fact in a divorce case, and if it is Aot clearly and unequivocally shown in the case of a soldier, the case is not made out. As said by Judge Key, for the Court of Civil Appeals for the Third District, in Bruner v. Bruner, 43 S. W. 796 :
“Ordinarily, questions of venue, unless raised by a plea in abatement, are regarded as waived, but such is not the rule in divorce cases. The statute requires bona fide inhabitancy of the state and residence in the county for six months next preceding the filing of the suit as a prerequisite to obtaining a divorce, and the plaintiff must allege and prove these facts in order to obtain a divorce.”
As said in Haymond v. Haymond, 74 Tex. 414 , 12 S. W. 90 :
“One condition to which a party seeking a divorce' in this state is subject is that he must reside in the county in which he brings his suit for the six months next preceding the filing of his petition. ⅛ ⅞ * When the facts required to exist by our statutes are not established by the' evidence, a decree of divorce should be refused.”
It may be, as asserted by appellant, that the proof in this case “goes a good deal further- than the proof ordinarily goes in divorce cases,” but “if were so it were a grievous fault,” and a check should be placed upon it. The evidence is clearly insufficient in this case to show statutory venue. The jurisdiction of the court was attacked by a plea, and was one of the contested points on the trial, and venue should have been clearly shown. Being stationed here as a soldier did not prove domicile nor tend to prove it, and the bare testimony of a future [intention to make San Antonio his place of residence did not meet the demands of the law.
While the plea to the jurisdiction was based alone on the proposition that appellee was a soldier, it placed the burden of showing that he had acquired a domicile in Bexar county by the “clearest and most unequivocal proof.” In this he failed, for, giving absolute verity to all he stated, he had never acquired any domicile in Bexar county, but intended to do so at some indefinite time in the future. That appellant did not testify did not in any manner add any corroboration to the evidence of appellee. The burden was on him and he had to establish venue regardless of the testimony of appellant. Appellant sought a postponement of the trial in order that she and her witnesses might be present at the trial, but this was denied her, and the case was called up out of its numerical order on the docket and set down for trial. Appellee is not justified, therefore, in claiming any advantage for himself on the ground that the appellant did not offer any rebutting testimony.
The motion for rehearing is overruled.