Strunc v. Strunc , 1930 Tex. App. LEXIS 475 ( 1930 )

This appeal is from a judgment granting appellee, Josie Strunc, a divorce from appellant, Joe Strunc. Appellant's contention here is that it did not appear from the allegations in, appellee's petition that she was entitled to maintain the suit. The contention is based on article 4631, Rev.St. 1925, in which it is declared that "no suit for divorce (quoting) shall be maintained in the courts of this State unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of this State for a period of twelve months, and shall have resided in the county where the suit is filed for six months next preceding the filing of same." The allegation in appellee's petition was that "she is now (quoting) a bona fide inhabitant of the state of Texas and has resided in said county of Red River in said state for more than 12 months next preceding the institution of this suit."

It will be noted that while appellee alleged that she was a bona fide inhabitant of the state at the time she filed her petition, she did not allege that she had been such an inhabitant for a period of 12 months before that time. It has been repeatedly held by courts in this state that the statute makes it indispensable to the right of a petitioner to maintain a suit for a divorce that he allege and prove that he has been an actual bona fide inhabitant (not merely a resident) of the state for 12 months. Motes v. Motes (Tex.Civ.App.) 229 S.W. 342; Gould v. Gould (Tex.Civ.App.) 244 S.W. 574; Hunter v. Hunter (Tex.Civ.App.) 286 S.W. 257; Lawler v. Lawler (Tex.Civ.App.) 15 S.W.2d 684; Wynn v. Wynn (Tex.Civ.App.) 251 S.W. 349; Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90. Appellee did not so allege in her petition. There is no statement of facts with the record sent to this court, and we therefore do not know whether she proved she was such an inhabitant or not.

The judgment will be reversed, and the cause will be remanded to the court below for such further proceedings as may be proper.