I feel unwilling to concur in the conclusions of the majority in this case. As stated by the majority, plaintiff's home was in Tarrant county prior to her marriage, and when she separated from her husband she returned thereto on May 30, 1915, with the fixed intention, so far as disclosed by the testimony, of making Ft. Worth her home. At this time she brought her trunk with her containing her possessions; at least all the effects that the record discloses she had. With such fixed intention she remained in Ft. Worth until impelled, as she testified, to visit her sister in Galveston by fear that her husband would take her children, as he had threatened to do. She took with her two suitcases filled with clothing, but nothing else. She further testified that after she had been in Galveston a couple of months she went to her sister's in Ballinger; that her little boy's health was bad, and that she took him there "because every time he goes to West Texas he gets strong, and that is the reason I went there, thinking his health would improve." She thereupon, as stated by the majority, returned to Ft. Worth, where she continued to reside some 2 1/2 months prior to the filing of her original petition. It nowhere appears *Page 969 that during the plaintiff's absence from Ft. Worth that she abandoned her original intent to make that city her home and residence. On the contrary, it affirmatively appears that such intent continued in actual force all during the times of her visits to Galveston and Ballinger. The intent constitutes an important and often a controlling element in the establishment of home and residence, and it has several times been held that a temporary absence will not destroy a residence once in good faith begun. Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90; Fox v. Fox, 179 S.W. 883; McLean v. Randell, 135 S.W. 1117. In the last two cases cited evidence less cogent, as it seems to me, than the evidence in this case on the same subject, was held sufficient to sustain the lower court's finding in the plaintiff's favor on the issue of her residence. In aid of the judgment in appellee's favor we must imply, if necessary, a finding by the trial court that the allegation in the plaintiff's petition that she was a bona fide resident of Tarrant county, Tex., for the 6 months next preceding the filing of her original petition, was sustained by the proof, and in my Judgment the evidence in this case is sufficient to support this finding.
But at all events, the amended petition, under the undisputed evidence, brought the plaintiff within the statute (see Dunlop v. Dunlop, 60 Tex. Civ. App. 389, 130 S.W. 715; McLean v. Randell,135 S.W. 1116), and in my opinion the proviso of Revised Statutes, art. 4632, quoted and relied upon by the majority, did not preclude the trial on the day of its filing. The proviso is not jurisdictional, as I construe it, but relates to a mere matter of procedure, and appellant made no objection below to so proceeding, and no objection on this ground has been presented by appellant in this court, and under our statute permitting amendments (article 1824) the amendment when allowed and filed related back to the filing of the original petition within the meaning and purposes of the proviso; so that there was in fact no violation of its spirit.
I, therefore, am of the opinion that the judgment below should be affirmed.