On Rehearing.
Mr. Justice Steeledelivered the opinion of the court.
The case was reversed for the reason, as stated in the opinion, that the plaintiff had not shown by her own testimony that her husband had failed to make reasonable provision for her support and the support of the family for the period of one year prior to the commencement of the action. The testimony showed that the husband had made provision for the support of his family up to the 1st of March, 1899; that up to the 1st of March, 1899, the parties lived in perfect harmony, and that it w*as not until after the 1st of March, 1899, that complaint was made by the wife that the husband was not making a suitable provision for her support. The court therefore held, that even though the defendant had perhaps not made a reasonable provision for her support or the support of the family after the 1st of March, 1899, to the commencement of the action, she had failed'to show (the suit having been brought in November, 1899) that there had been a failure to support for the period of a year prior to *505the commencement of the action. If there were no other questions presented than that of the sufficiency of the evidence, we should, perhaps, remand the cause for another trial. In fact, we are not without doubt as to the correctness of reversing the case for the reasons announced in the opinion, but we are clearly of opinion that the cause must be reversed for the reason that a jury of three is not a legal jury in a proceeding for divorce, in cases where objection is made by one of the parties. Proceedings in divorce are to be conducted in accordance with the statute concerning divorce and alimony, and the code of civil procedure. No provision is made for a jury in the chapter concerning divorce and alimony, but by the'code it is provided that, “The jury shall consist of six persons, unless the parties agree to a smaller number, not less than three.” — Mills’ Annotated Code, Section 179.
The defendant objected to a jury of three, and his objection was overruled. The objection should have been sustained and a jury of six impaneled to try the cause. We hold that unless the parties consent thereto, a jury of three cannot lawfully try a suit for divorce. We must not be understood as holding that in case of default, where an attorney has been appointed by the court to represent the absent defendant, the attorney so appointed can consent for the defendant to have the cause tried by a jury of three.
The court should have determined the question of residence of the plaintiff. A motion having been made by the defendant to dismiss the cause because it did not appear that the plaintiff was a bona fide resident of Pitkin county, it should have been sustained if the court was of opinion that the plaintiff was not a bona fide resident. Causes can only be brought in the county where the plaintiff resides or *506where the defendant resides, or where the defendant last resided. It is a jurisdictional question, and cannot he waived by the parties. Unless the residence required by the statute is in some manner shown, the court is without jurisdiction. Residence in one of the counties of this state may be acquired in an hour, and a person is entitled to bring his suit for divorce at any time after he has acquired residence in good faith in a county of the state, if he has been a bona fide resident and citizen of the state for a period of one year; but one cannot acquire a residence, either in the state or a county thereof, which will entitle him to access to our courts for the purpose of obtaining a divorce, by a sojourn without an intention to make the place a place of permanent abode.
Counsel have suggested that the opinion be modified, and that the case be remanded with directions for another trial, and not with directions to dismiss the cause. There is no reason for prolonging this litigation. The cause, if remanded, must be dismissed by the court because of the fact that during the pendency of the case here the appellee remarried; and, having remarried before her judgment of divorce became final, she has violated the marriage obligation, and is not entitled to a divorce.
Counsel stated in open court that the appellee married more than a year after the granting of the decree from which an appeal was taken, but the fact that a year elapsed before she Was married does not affect her status. The appeal suspended the judgment for all purposes, and she could not lawfully marry again during the pendency of the appeal.
We are not unmindful of the fact that the result of this judgment is of serious consequence to the apellee and the man she married, but they should have thought of the consequences before taking the step. ■We are of opinion that the court has the right, in di*507vorce proceedings, as representing the people, to take notice of the change of status of the parties or either of them, and that when one of the parties to a suit for divorce remarries, pending an appeal in this court, that the party has not the right.either to prosecute or defend- in this court, and cannot be heard to question the correctness of the decision of the court, in a petition for rehearing.
The petition for rehearing is denied.
Mr. Justice Gabbert does not concur, being of opinion that the petition for rehearing should be granted and the judgment affirmed.