Herrington v. Herrington

This is an action for divorce on the ground that plaintiff and defendant have been living apart for more than seven years. Act 269 of 1916.

The defense contends that plaintiff had not resided continuously in the state'for the seven years next preceding the filing of the suit; a prerequisite under Act 269 of 1916.

The evidence satisfied the district judge, and it satisfies us, that plaintiff was a resident of this state for seven years next preceding the filing of this suit, to wit, next preceding July 30,1928.

Defendant urges that plaintiff is es-topped to deny that during said period of seven years he resided at least one year in the state of Mississippi, to wit, from October, 1921, to October, 1922, because he so declared *252 in a petition for divorce which he brought against her before the chancery court of Jones county, Miss. In the. first place, we think the record of said suit was properly excluded by the trial judge because it was not properly certified to according to the provisions of the act of Congress relative to the proof of judicial proceedings in other states. The record was simply certified by the clerk of court, and there is nothing in .the record to prove the capacity of the clerk, except an endeavor to prove same by parol evidence, which was properly excluded. But, again, said suit was dismissed on plaintiff’s motion, and hence the allegations thereof do not form the basis of any right for either plaintiff or defendant here, and hence cannot estop either of them from proving the truth, such as it may be.

Decree.

For the reasons assigned, the judgment appealed from is affirmed, at the cost of defendant in both courts.