Lorillard v. Lorillard

131 So. 2d 707, 272 Ala. 380, 1961 Ala. LEXIS 448

• Court: Supreme Court of Alabama
• Decided: June 22, 1961
• Docket: 6 Div. 401
• Status: Published

Opinions

PER CURIAM.

Appellant argues that the final decree granting divorce is in error for two reasons: first, because the evidence is insufficient to support the allegation that complainant is a resident citizen of Alabama; and, second, because the evidence is insufficient to support the allegation that respondent has committed actual violence on the person of complainant attended with danger to his life or health, or that from her conduct there is reasonable apprehension of such violence. § 22, Title 34, Code 1940.

Appellant’s first insistence is well taken and renders unnecessary consideration of the second insistence. In Volin v. Volin, ante, p. 85, 128 So.2d 490, 491, recently decided, we held that the following testimony, to wit:

“/* * *. I am over the age of eighteen years and am a resident of the State of Alabama and have been such for the length of time required by law’ ”;

was insufficient to prove that complainant was a resident of this state. The testimony here is:

“I am over the age of twenty-one years and am a resident citizen of the State of Alabama.”

The instant testimony is no stronger than the testimony in the Volin case, and for the reasons there stated is not sufficient to sustain the allegation of residence. It follows that the decree awarding divorce was in error for lack of proof of the averment of residence and must be reversed. Levy v. Levy, 256 Ala. 629, 56 So.2d 344.

Reversed and remanded.

LIVINGSTON, C. J., and LAWSON, SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. COLEMAN, J., dissents.