#### Esther D. Sylvester v. Douglas Sylvester, Appellant.

Divorce : length of residence : *Jurisdiction.*Under Code, section 1 3171, relating to divorces and giving jurisdiction thereof to the district court of the county in which either party resides, residence need'not be for the length of time prescribed by Constitution, Article 3, section 13, to give the right to vote.

'Pleading: *Motion to change place of trial.*Such motion is not to be 3 granted simply because affidavit is made that the mover is a resident of another county, there being no recital of fact to sustain said conclusion.

*Evidence held insufficient.*Plaintiff cannot have divorce where her life at no time has been endangered by defendant’s treatment 3 though he has been guilty of unmanly and brutal conduct in connection with her equally reprehensible conduct.

*Appeal from Greene District Court.*— Hon. Z. A. Church, Judge.

Thursday, October 19, 1899.

ActioN in equity for a divorce. There was a hearing on the merits, and a decree for the plaintiff as prayed. The defendant *appeals.*

Reversed.

*M. R. & J. B. McCrary*for appellant.

*Rose & Henderson*for appellee.

Robinson, O. J.

The plaintiff and the defendant were married to each other on the 6th day of April, 1897, and from that time until the 3d day of the next November lived together ón a farm in Calhoun county. On the last-named date the plaintiff left her husband, and now seeks a divorce on the ground that he has been guilty of such inhuman treatment as to endanger her life.

I. This action was commenced in Greene county on the 15th day of December, 1897. Before answering, the defendant hied a motion for a change of the place of trial *402to Calhoun county. The theory of the motion is that sixty days’ residence in Greene county after the separation 1 was required to enable the plaintiff to maintain this action in that county, and the petition shows that the action was commenced less than sixty days after the plaintiff left Calhoun county. The motion was Overruled. The petition shows that the plaintiff has been a resident of Greene county since the year 1883, excepting the time during which she lived with her husband in Calhoun county, and that when the petition was filed she resided in Greeno county. Section 3171 of the Code, which relates to divorces, is as follows: “The district court in the county where either party resides has jurisdiction of the subject-matter of this chapter.” It was said in *Whitcomb v. Whitcomb,*46 Iowa, 437, that the residence contemplated was not merely temporary, -but that it should be fixed, without any intention of changing it. Mere length of time during which a person has lived in a particular locality is not controlling, and if he remain there longer than the period of time required to give him a legal residence, but without any intention of making it his permanent place of residence, he does not become a resident thereof, within the meaning of the law. *Hinds v. Hinds,*1 Iowa, 36. Section 1 of article 2 of the-constitution of this state prescribes the residence necessary to give a. citizen of the United States the right to vote in this state, but does not fix the residence which is necessary to give a court jurisdiction of an action for divorce. The general rule that the domicile of the husband is the domicile of the wife does not apply in proceedings for divorce, the-law recognizing the right of the husband and wife to- have separate domiciles where there is leg'al ground for separation. *Kline v. Kline,*57 Iowa, 386. The petition alleged sufficient grounds for a divorce, and that the plaintiff was a resident 2 of Greene county. The motion for a change of the place of trial, was supported by an affidavit which alleged, among other things, that the “plaintiff is a *403resident of Calhoun county/’ but that was a conclusion not sustained by any recital of facts, and was not sufficient to overcome the averments of the petition. We conclude that the motion was properly overruled.

II. The plaintiff testifies that after she and her husband had lived together about one month they had a disagreement in regard to the purchase of two cows; that he was not able -to buy them, and that she told him she would pay for them, but would have to wait a month or two for the money; that at a later time he asked her if she would go with him for the cows, and she answered that she would; 3 that he then said he guessed he would write a note, and wrote one, and asked her to sign it. She further says: “I was thunderstruck. I did not suppose I would have to sign anybody else’s note when I could pay for the cows myself. I told him, ‘Yes; I would sign that note, but I would never sign another.’ He swore at me.” The plaintiff further testifies that in July or August her husband became very angry, and told her to leave; that she started to do so-, and- he came after her and pushed her; thaTthe bedroom door was open, and he pushed her through it, and she struck her head on a sharp corner at the foot of the bed; that the injury made her sick, and affected the use of an eye; that upon one occasion he kept her up until 3 o’clock in the morning because he wanted her to sleep in a certain place, and she caught cold, and could not speak louder than a whisper for two weeks; that he choked her not less than a half a dozen times; that in October she was visited by a niece, and, as there were but two beds, she asked her husband, as an accommodation, to sleep with a boy who was staying with them; that he answered he did not know whether he would or not; that he “grabbed up the bedclothes, and went and slept in the bedroom”; that the next night, after she had retired, he came to her room, and ordered her to go to the other room; that she told him she “had no intention of doing so”; that he dragged all the bedclothes from *404tbe bed, dragged her out, and threw her out of the door, and then threw a sheet-iron basket onto her, and kept her out in her nightclothes at about 9 o’clock at night. She further states that “he swore at me, and told me if I did no- go to the other room I was fired. When he dragged me out, he told me never to return. He told me if I did not do as he wished I was fired instanter. He used to say he would take me to Lake City or Rockwell City to go. He became more and more brutal. He struck me more than once, I guess. * * * He swore at me/ He called me a ‘God damned liar,’ and ‘a son of a bitch,’ and a ‘fool,’ and a ‘horse’s ass.’ I never heard such profane language. I could not remember it, and would not try. He threatened to kill me. He said, ‘God damn you, I will knock your brains out;’ and he tried to. He came at me with an ear of corn in his hands, and threatened to knock my brains out. He threw a knife at me that just barely missed me, — a case knife he was using at the table. He threw a glass of water at my face. He was ill mannered. He threw a chicken that was cooked-prepared — at me. He most generally prepared himsjelf for dinner by changing his clothes..That morning he refused to. I said something to- provoke him. He threw the chicken all over me. Some went on the wall, some on the floor, and some over me.” The plaintiff further testifies that she was terrified by the conduct of the defendant; that she was afraid of her life, and did not know at what moment he might fly at her and endanger her life; that she treated him as well as she knew how, and did not use any violence towards him except in self-defense. She admits that she struck him on two occasions. On the first one they had gone to town together, and separated there for a short time. There appears to have been a misunderstanding in regard to the place of meeting, and she states that when they met and started for home he commenced to- swear at her; that he swore all the way down the street, and until they were nearly a mile out of town, and waved his fist ; that *405be swore until sbe was nearly frantic, and sbe told bim to stop or get out of tbe buggy, or sbe would bit bim; that sbe struck bim on tbe nose witb ber fist, and he stopped swearing. Tbe nest act of violence on 'her part, she says, was committed tbe morning after sbe was thrown out of tbe house, and sbe describes it as follows: “Tbe other time was Sunday morning. He ordered me out to, herd tbe cattle while be busked corn. I told bim I bad planned to go to church, and be told me that I should not dare to take my horse out of tbe barn. I owned a horse and buggy and harness. I bought them after I married bim, witb my own money. I did what most any woman witb a little grit would do-. I tied tbe horse to a post, and be came out there, and said he was going to take ber in tbe corm field." I told bim I guessed not. He said I should not have tbe harness. I told the little boy to get it. He went to tbe buggy, and got tbe harness, and then there was a tug of war. My husband tried to' pull it away from me. Frankie ran up tbe road. So be dropped tbe harness, and ran after bim. He brought tbe boy back. This time I bad tbe harness. He told me¡ to give it up. I had the buggy whip. I told bim I would bit bim if be did not give up> and I struck bim one lash. I don’t know, — one or more. I know I did not 'hurt bim much. He gave, up tbe harness. * * * I gave bim to- understand I did not intend to live with bim. He said be would do what was right if I would do what was right. I told bim I did not think be knew what was right.” Tbe plaintiff testified, on cross-examination, that sbe did not think ber life was in danger when sbe "struck ber husband witb tbe whip ; that sbe “was in fun.” In describing ber conduct, sbe states: “I was just as independent as one could be; just as independent as I knew bow to be. I don’t know but what I am always independent. I meant when I said I was always independent that I am of an independent nature.” She was asked in regard to ber having been put out of the bouse in ber nightclothes, *406and said that her husband did not shut the door on her, but did not coax her to return to the house until she. asked him what he was going to do with her, — whether he was going to send her away, or let her go into the house. In response to the question, “You were out there, and you gave him to understand that he must put the bedclothes back, and all those little things you required of him; if he did not do that you would stay out. Did he go and do. those things you required of him?” — she answered, “He took the bedclothes in, and I walked into the house; I slept in the bed I first intended to sleep1 in.” In response to another question, she states: “I did not say I treated him lovingly the first week I lived with him. I think sometimes I did not treat him as lovingly as a wife ought to.” The account given by the defendant of the note incident is that when he asked her to sign the note she became very much excited and talked at least twenty minutes, using abusive language towards him; that he' asked her if she had run down; that he threw the note he had drawn into the stove.; and that within five or ten minutes thereafter she said she would sign a note, and he drew another. He says, in regard to the chicken incident, that just before he threw the chicken his wife was very angry, and threw the butcher knife at him, and that she threw water at him; that he did not throw a knife at her or near her, but into a corner of the. room. He explains the incident in which the buggy whip was used by saying that he needed the horse she was intending to drive in place of another which was sick, and that “she went out and sat in the buggy, and did everything she could to tantalize me.” He also- says she struck him several times with the whip-. He says, in regard to putting her out of the house in the nighttime, that she dared him to do it; that within- five minutes after she was put out he pleaded with her to return, but she refused; that she finally said she would go back if he would put the bedclothes back, and he did so; that, as he was picking them *407up, be beard tbe niece of tbe plaintiff say to ber, “Now you bave got bim,” and tbe plaintiff answered, “I am sure .1 bave.” He denies choking ber, but states that on one occasion bis wife struck bim with a broomstick, and be put bis band “on ber epiglottis, and pushed her back far enough so I could take tbe broom out of her1 band. She did Hot breathe bard.” But little of bis testimony is contradicted. Our conclusion, reached after a careful examination, of tbe entire record, important parts of which we bave not set out, is that tbe life of tbe plaintiff has not at any time been endangered by tbe treatment of the defendant: That be has been guilty of unmanly, and even brutal, • conduct is true. But in many of their, difficulties ber conduct was as blamable as was bis, and in some instances she provoked trouble without cause. Both were in fault, neither exercised tbe forbearance nor manifested tbe consideration for tbe rights and desires of tbe other • which their relation demanded, and, although the husband’s conduct is without justification, we are not prepared to say that it was more reprehensible than was that of tbe wife. That tbe union in marriage1 of two persons having such dispositions is unfortunate is probably true, but incompatibility of temperament is not a ground for divorce in this state. Our conclusions bave support in tbe following authorities: *Blair v. Blair,*106 Iowa, 269; *Schaffer v. Schaffer,*106 Iowa, 492; *Potter v. Potter,*75 Iowa, 211; *Maben v. Maben,*72 Iowa, 658; *Whaley v. Whaley,*68 Iowa, 647. The plaintiff is thirty-one, and tbe defendant is thirty-five years of age. Both bave taught school, and appear to, be intelligent people, and the plaintiff has, as she says, “a pretty good constitution.” No sufficient reason for their permanent separation is shown, and tbe decree of tbe district court must be and is reversed.