
    Larregui, Plaintiff and Appellee, v. Betancourt, Defendant and Appellant.
    Appeal from the District Court of Gfuayama in an Action for ' Divorce.
    Motion for Change of Venue.
    No. 1688.
    Decided November 20, 1917.
    Divorce — Change of Venue — In Forma Pauperis — Appearance—Submission.— The filing of a petition for leave to -defend in forma pauperis, a motion for change of venue and an answer to the complaint, all at the same time, in an action for divorce does not constitute a general appearance and submission within the letter or spirit of section 77 of the Code of Oivil Procedure, although the petition may have been dated a day earlier than the other pleadings and placed first in order of presentation.
    Id. — Id.—Domicil—Statement of Fact. — When in support of a motion for change of venue in an action for divorce the defendant wife files an affidavit of merits averring that she resides in a district other than that in which the complaint was filed and it does not appear that the spouses really have different places of residence; that is, when it is not shown that the plaintiff husband has a domicile distinct from that of his wife, and especially when there are indications in the record that the husband resides in the same district as the wife, sueh statement is one of fact and not a conclusion of law.
    Tlie facts are stated in the opinion.
    Mr. Enrique Campillo for the appellant.
    
      Messrs. Francis & \Soto and Carmelo Honoré for the ap-pellee.
   Mr. Justice Wole

delivered the opinion of the court.

The appellee in the District Court of Gfuayama began a suit of divorce against his wife. The present appeal is from an order refusing to transfer the case for trial to theDistrict Court of San Jnan. The grounds for the refusal are (1) that as the appellant first filed a motion in forma pauperis, this constituted a general appearance and a submission to the District Court of Guayama, and (2) that the appellant did not duly show herself to be a resident of San Jnan.

The record neither shows with precision the dates on which the motion for a change of venne was filed nor the date.of the application to conduct the proceedings in forma pauperis. The application to plead in forma pauperis appears ahead of the motion for a change of venne, bnt the date on the application is later than the motion. The court says that the appellant’s first act was an application to1 ph'ad in forma pauperis. There is a strong probability that the application, the motion and defendant’s answer were all filed together. If these papers were all filed together it surety makes no difference that the said application was placed first in order of tradition to the District - Court of Guayama. They were all designed to be considered together. Supposing that the application, were a day ahead, it is not an appearance bnt a petition to be allowed to appear and plead without paying costs. It is not a step in the action under section 77 of the Code of Civil Procedure. Even if considered as an appearance, the only step taken by the defendant was to ask for a change of venue, the very exception mentioned in said section 77. We think the filing of an application to plead in forma, pauperis falls neither under the letter nor the spirit of section 77.

The court below, in refusing the motion of transfer, says that the presumption is that the wife lives where her husband lias his residence. The wife, however, filed an affidavit of merits wherein she said that her' residence was San Juan. This statement might be a conclusion of law if in point of fact she and her husband had different physical residences. We are inclined to think that her statement was a statement of. fact in the absence of something to show a different resi-deuce in the husband than San Juan. There might be an inference of this kind from the presumption that parties reside where the suit is brought. In this case, however, the oath to the complaint says that the husband is accidentally in Giiayama. He does not say so before a notary in Gua-yama, but before a notary in San Juan.

There is more in the record to show that the wife 'is making a statement of fact when she says that she resides in San Juan. Her affidavit states that a previous suit had been begun against her in San Juan and decided in her favor there- on September 20, 1916. The present suit was begun in January, 1917. The parties would be presumed to be living in San Juan at the time of the judgment, and there is nothing to show that they changed their residence. Both parties made their affidavit before the same notary in San Juan. The service of the complaint was made on the defendant in San Juan. The lawyers reside in San Juan. The complaint is dated at San Juan for G-uayama. And, as we have se,en, the complainant was only accidentally residing in Guayama.

Now, if the court' had been in doubt of the residence of the defendant in San Juan it could have taken steps to ascertain the truth. The whole record shows. to our minds that b'oth parties reside in Sah Juan. We think the motion sufficiently complied with the law, although it' would have been better if in her affidavit she had stated that her husband was a resident, of San Juan.

The order must be reversed and the change of venue ordered.

jReversed.

Justices del Toro and Hutchison concurred.

Chief Justice Hernandez and Justice Aldrey absent.  