Apperson v. Apperson
| Decision Date | 12 January 1928 |
| Docket Number | 6 Div. 847 |
| Citation | 217 Ala. 157,115 So. 229 |
| Parties | APPERSON v. APPERSON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; William M. Walker Judge.
Bill in equity by Elsie Caldwell Apperson against Benjamin C Apperson. From a decree denying relief, complainant appeals. Affirmed.
Aird & Aird and Fort, Burton & Jones, all of Birmingham, for appellant.
London, Yancey & Brower and Frank Bainbridge, all of Birmingham, for appellee.
The main issue presented by this appeal is one of fact, to be determined by the weight of the evidence. The testimony of complainant, if uncontradicted, or if believed, would justify a decree of divorce against respondent on the ground of cruelty, as prayed.
Her testimony is, however, without any substantial support, and is specifically contradicted by the answer and testimony of respondent, which finds some very material corroboration in the testimony of several other witnesses. The burden of proof in these cases is, as usual, upon the complaining party; and here complainant's burden is to reasonably satisfy the court of the truth of her charge of conduct on the part of respondent amounting to culpable cruelty. Jones v. Jones, 189 Ala. 286, 66 So. 4; White v. White, 207 Ala. 533, 93 So. 457.
Without here dissecting and weighing the evidence in detail, we are content to simply say that it has been thus considered, and that we are not reasonably satisfied, in view of the countervailing evidence, that respondent has been guilty of the misconduct charged.
With respect to complainant's right to alimony and counsel fees pendente lite, we have dealt with that question in the related case of Ex parte Apperson (Ala.Sup.) 115 So. 226. The final decree in this cause was merely that complainant was not entitled to the relief prayed; that is, to divorce and permanent alimony. There was no determination of the question of alimony and counsel fees pendente lite--a fact which complainant's motion for a decree on the register's report, filed 24 days after rendition of the final decree implicitly recognized. In fact, the register's report had been ordered to lie over until November 13th for filing objections thereto, and for further consideration. This appeal, therefore, does not bring before us for review any action of the trial court with respect to such allowances. Had the final decree, the parties consenting, undertaken to determine those...
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Ex parte Apperson
...by Elsie Caldwell Apperson for mandamus to William M. Walker, as Judge of the Circuit Court of Jefferson County. Writ awarded. See, also, 115 So. 229. Aird Aird, of Birmingham, for petitioner. London, Yancey & Brower and Frank Bainbridge, all of Birmingham, for respondent. THOMAS, J. The pe......
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Ex parte State ex rel. Hillhouse
... ... costs of the former suit." ... In the ... Jordan Case, supra, and Ex parte Apperson, 217 Ala. 176, 115 ... So. 226, decisions proceed on the assumption that the ... chancellor has some discretion if proper cause is shown. The ... ...
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Thompson v. Thompson
...failure to award counsel fees is not reviewable on appeal. Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281 (1968); Apperson v. Apperson, 217 Ala. 157, 115 So. 229 (1928). Appellant's request for the award of an attorney's fee here is The award of an attorney's fee on appeal in a domestic re......
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...v. Lawrence, 141 Ala. 356, 37 So. 379; Lovett v. Lovett, 11 Ala. 763; Murray v. Murray, 84 Ala. 363, 4 So. 239, and Apperson v. Apperson, 217 Ala. 157, 115 So. 229. good pleading would seem to suggest that if the husband owns property, that fact should be averred in the bill; and if the bil......