Burke v. Burke

• Decision Date: 16 November 1922
• Docket Number: 7 Div. 256.
• Parties: BURKE v. BURKE.
• Court: Alabama Supreme Court

94 So. 513

208 Ala. 502

BURKE v. BURKE.

7 Div. 256.

Supreme Court of Alabama

November 16, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Bill by Joe Burke against Frances Burke, and cross-bill by defendant. From final decree, complainant appeals. Affirmed in part reversed in part and remanded

Hood &amp Murphree, of Gadsden, for appellant.

Culli &amp Hunt, of Gadsden, for appellee.

THOMAS J.

The appeal is from a decree in equity, where the evidence was taken before the court viva voce. The conclusions of the court on the facts are supported or sustained by the evidence. Andrews v. Grey, 199 Ala. 152, 74 So. 62; Manchuria S. S. Co. v Donald & Co., 200 Ala. 638, 77 So. 12; Ray v. Watkins, 203 Ala. 683, 85 So. 25; Hodge v. Joy, 207 Ala. 198, 92 So. 171. The real property was not occupied by the husband or wife as a homestead. Grace v. Grace, 96 Minn. 294, 104 N.W. 969, 4 L. R. A. (N. S.) 786, 113 Am. St. Rep. 625, 6 Ann. Cas. 952.

Assignment of error is based on overruling of demurrer to respondent's (appellee's) answer and cross-bill, filed June 30, 1920. The sufficiency of such pleading may be tested by demurrer. Ex parte Woodruff, 123 Ala. 99, 26 So. 509. The report of the appeal will contain sufficient of the averments of this pleading to illustrate the erroneous ruling of the trial court in sustaining the cross-bill as a suit for alimony, maintenance, and custody of minor child and attorney's fees. The general scope of a cross-bill is that it must relate to and be connected with the subject of the original bill (Whitfield v Riddle, 78 Ala. 99), germane thereto (Meyer v Calera Co., 133 Ala. 554, 31 So. 938, O'Neill v. Perryman, 102 Ala. 522, 14 So. 898; Grimball v. Patton, 70 Ala. 626; Cont. L. I. Co. v. Webb, 54 Ala. 688), and may raise new issues relating to the subject-matter of the original bill, dependent upon the general facts presented in the original bill (Davis v. Cook, 65 Ala. 617; Faulk v. Hobbie Co., 178 Ala. 254, 59 So. 450; Howell v. Randle, 171 Ala. 451, 459, 54 So. 563; Ashe-Carson Co. v Bonifay, 147 Ala. 376, 380, 41 So. 816; Smith v. Rhodes, 206 Ala. 460, 90 So. 349; Metcalf v. Griffith, 202 Ala. 629, 81 So. 571).

The demurrer to the cross-bill should have been sustained. The decree of the lower court is affirmed in respect to findings that the land was jointly owned by the parties (each owning a half interest therein); that it can be equitably divided or partitioned between them in kind without a sale thereof; that complainant has no interest in the personal property specifically described in the decree; that complainant and respondent jointly own the objects of personalty described and that they can be equitably divided or partitioned among said joint owners without a sale; that partition of the land described be by the commissioners named to execute the trust and also to divide or partition the personal property; and as affecting the stenographer's fee and costs of court....