Bickley v. Bickley

• Decision Date: 04 February 1903
• Citation: 136 Ala. 548,34 So. 946
• Parties: BICKLEY v. BICKLEY ET AL. [a1]
• Court: Alabama Supreme Court

34 So. 946

136 Ala. 548

BICKLEY v. BICKLEY ET AL. ^[a1]

Supreme Court of Alabama

February 4, 1903

Appeal from Chancery Court, Colbert County; Wm. H. Simpson Chancellor.

Bill by Susan P. Bickley against Elbert L. Bickley and another. From a decree granting the above-named defendant a divorce in conformity with the prayer of a cross-bill, and dismissing plaintiff's bill, she appeals. Affirmed.

The purpose of the bill was to have alimony granted the complainant upon the ground of the voluntary abandonment of her by her husband, Elbert L. Bickley. It was averred in the bill that during the absence of Elbert L. Bickley he left his nephew, Clarence T. Bickley, in charge of his property, and for this reason Clarence T. Bickley was made a party defendant. The respondent Elbert L. Bickley filed his answer which he asked to be taken as a cross-bill, in which he set up that the cause of his leaving the complainant was that he had discovered that she had been unfaithful and untrue to him, and that she had been guilty of adulterous intercourse with another man. The prayer of the cross-bill was that the cross-complainant be granted a divorce from the marriage bonds with the defendant because of her adultery, and that he be permitted to marry again. The respondent to the cross-bill moved to dismiss the cross-bill upon the ground that there was no equity therein. The respondent to the cross-bill also demurred to the bill upon the following grounds: "(1) That said cross-bill is wanting in equity, and should be dismissed, because the right or equity therein set up has no connection with, and is not germane to, the original bill filed in this cause; but its subject-matter is distinct and independent of the right asserted by said original bill, and does not pertain to it. (2) That said cross-bill should be dismissed out of this court, because the decree of divorce asked by the complainant in said cross-bill does not grow out of any matter alleged in said original bill, in this: that said original bill seeks an allowance to the complainant therein out of the estate of her husband, who has failed to provide for her, and said cross-bill seeks independent relief of a divorce to the complainant therein, the right to which if it exists, is distinct from, and not germane to, the subject-matter of the original bill. (3) That the right sought by said cross-bill is a divorce from the complainant in the original bill, which should be sought, if any grounds could be alleged therefor, by an original bill, to which the complainant in the original bill in this cause might make answer, and, if there were grounds on which she should be granted a divorce, have the opportunity to present the same by her cross-bill, and obtain a decree therefor, which cannot be done in this cause." On the final submission of the cause upon the pleadings and proof the chancellor rendered a decree overruling the motion to dismiss the cross-bill and overruling the demurrers thereto, and further decreed that the complainant in the original bill was not entitled to the relief prayed for, and ordered her bill dismissed, and then decreed that the complainant in the cross-bill was entitled to the relief prayed for in his cross-bill, and ordered that he be granted a divorce as prayed for.

Thos R. Roulhac and James Jackson, for appellant.

Al. H. Carmichael and Kirk & Rather, for appellees.

HARALSON J.

1. In England the law of marriage and divorce, in its administration, was committed to the ecclesiastical courts; and as we have no such courts in this country, and never had, observes Mr. Bishop, "no tribunal in this country can take jurisdiction of this class of cases, without authority from a statute; but, when a statute has given the authority, the tribunal is to exercise it, according to the practice in the ecclesiastical courts, modified to harmonize with the practice in our courts, and not opposed or repugnant to the constitution and statutes of the state." 1 Bishop on M. and D. §§ 70, 71, 79. In most of the states, and in Alabama, statutes have been enacted conferring jurisdiction of these subjects on the courts of chancery. Code 1896,§ 1485 et seq.

The statutes are silent as to a cross-bill by a defendant asking for affirmative relief, in suits for divorce or alimony. This does not imply that under the general rules of practice of such courts, as in the ecclesiastical courts, such relief may not be sought and had.

In 7 Ency. of Pleading and Practice, 96, it is said: "In the ecclesiastical courts, the defendant might obtain any relief concerning the marriage relation, such as a separation, a restitution of conjugal rights, or a decree annulling the marriage, and this regardless of the relief prayed for in the petition. In the absence of any special statute [provision] in the statutes relating to divorce, and in those states where the provisions of the Code relating to counterclaims do not include a cross-demand for affirmative relief, the practice of the ecclesiastical courts may be followed, on the ground that such practice, in the absence of any other, has been adopted as a part of our common law."

On the same subject, Mr. Bishop says: "The practice of bringing a cross-suit by defendant against the plaintiff, to aid the defense and obtain affirmative relief, may be resorted to in divorce cases the same as in any others. It is permissible equally whether the proceeding is by bill in equity, by libel corresponding to the ecclesiastical libel, or by statutory complaint." 2 Bish. on M. & D. § 318; Dodd v. Dodd, 14 Or. 338, 13 P. 509; Wuest v. Wuest, 17 Nev. 217, 30 P. 886; Blakeley v. Blakeley, 89 Cal. 324, 26 P. 1072.

In this state it is provided, that "a defendant may obtain relief against a party complainant or defendant for any cause connected with or growing out of a bill, by alleging in his answer, and as a part thereof, the facts upon which such relief is prayed. The matters of fact thus alleged and put in issue must be considered in the nature of a cross-bill, and be heard at the same time as the original bill." Code 1896, § 720.

This is a suit, not for divorce by the wife, but for alimony out of the husband's estate, on account of his desertion of her, and his failure to provide for her. If it were for a divorce, it seems to be well settled, the husband might be allowed in his answer in the way of a cross-bill or counterclaim, to demand and obtain the affirmative relief of divorce, when shown to be entitled thereto. We discover no distinction in principle, as to this right, when a bill competent to be filed under our divorce system is for alimony alone. Brindley v. Brindley, 121 Ala. 429, 25 So. 751. It would be unnecessary and vexatious to require the defendant, in such case, to bring a new suit and go over the same matters, which could as well be brought forward in the existing suit. The rights of the parties could be adjusted in the one as well as in bringing another suit, thereby avoiding inconvenience and delay. Whatever can be done consistently with the law, to put an end to vexatious and irritating litigation ought to be done. Aside from this, however, a suit for alimony concerns dircctly, and is cognate to the marriage relation between the parties. It touches matters in question in the original bill. "A cross-bill, ex vi termini, implies a bill by defendant against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. * * * It is regarded as auxiliary to, or as a dependency upon the original suit, and its subject-matter is that of the original bill." C. L. Ins. Co. v. Webb, 54 Ala. 694; Wilkinson v. Roper, 74 Ala. 141. As a proper defense to the suit for alimony alone, the defendant set up the adultery of complainant, his wife, and this fact being alleged in the answer, and being a fact upon proof of which defendant was entitled to a divorce, it was competent for him to make his answer a cross-bill, and pray for affirmative relief. Code 1896, §§ 1496, 1498.

The court committed no error in overruling the demurrer to, and the motion to dismiss the cross-bill.

2. There was no error in the introduction of the letter purporting to have been written by Charles Rushing to the complainant, attached to defendant's cross bill, as Exhibit A. This was an original document, shown to be in the handwriting of said Rushing, and received by complainant. The evidence is wanting to show that the date of said letter was suppressed, or that it bore any date, but the proof satisfactorily shows it was written, on August 28, 1899 before complainant's marriage with the defendant, E. L. Bickley,--on the 14th of September of that year. Nor did the fact that it was written to and received by her, before her marriage with defendant, render it inadmissible. On a charge of illicit intercourse, after marriage, evidence of acts not long anterior thereto, tending to show illicit relations between the accused and a third person, is admissible, in connection with evidence of similar acts, during the marriage, to prove the illicit intercourse charged. Alsabrooks v. State, 52 Ala....