Adams v. Adams , 191 Ga. 537 ( 1941 )

The evidence shows that before the separation the defendant resided with his family in Decatur County. Upon the trial the defendant testified that, "Since April of last year, I have lived everywhere. . . I did not board in Grady County. . . I removed my residence from Decatur County on July 20, 1939. Up to that time I voted in Decatur County." The evidence relied upon by the wife to overcome this positive testimony as well as the circumstance of previous residence is the testimony of the witness Johnson, who testified in effect that since the date of separation he had frequently seen the defendant going to and from the residence of Zora Jones. While the circumstantial-evidence rule (Code, § 38-109) is applicable to criminal cases and does not apply in the same way to civil cases, a rule very similar is applicable in civil cases. This rule may be stated to be that the circumstances relied upon must be shown by a preponderance of evidence to be consistent with the hypothesis claimed, and inconsistent with any other reasonable hypothesis. Georgia Railway Electric Co. v. Harris, 1 Ga. App. 714 (57 S.E. 1076); Radcliff v. Maddox, 45 Ga. App. 676 (2) (165 S.E. 841). The circumstances shown by the wife create a mere inconclusive inference, a mere scintilla, and can not be regarded as evidence. Hence the evidence demands, as a matter of law, a finding that the defendant was not a resident of Grady County when the suit was filed. Consequently no valid suit for divorce was pending, and an award of temporary alimony was unauthorized. Code, § 30-202.