Cooper v. Cooper

• Decision Date: 07 June 1923
• Docket Number: 6 Div. 824.
• Citation: 97 So. 66,210 Ala. 13
• Parties: COOPER v. COOPER.
• Court: Alabama Supreme Court

97 So. 66

210 Ala. 13

COOPER v. COOPER.

6 Div. 824.

Supreme Court of Alabama

June 7, 1923

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill for divorce and custody of child by D. B. Cooper against Ida Lou Cooper and cross-bill by Ida Lou Cooper. From a decree dismissing the original bill and granting relief to respondent on her cross-bill, complainant appeals. Reversed and remanded.

G. M Edmonds and C. E. Wilder, both of Birmingham, for appellant.

Clark Williams, of Birmingham, for appellee.

THOMAS J.

In Wright v. Wright, 200 Ala. 489, 76 So. 431, this court declared of the statute (Code 1907, § 3802), that the failure of the bill to show complainant's residence was a defect of substance, of jurisdiction, and not of mere form. Martin v. Martin, 173 Ala. 106, 55 So. 632; Smith v. Gibson, 191 Ala. 305, 68 So. 143. Such defect may be sufficiently brought to the court's attention by the general demurrer. McDuffie v. Lynchburg Shoe Co., 178 Ala. 268, 59 So. 567; Whiteman v Taber, 203 Ala. 496, 500, 83 So. 595; Seeberg v Norville, 204 Ala. 20, 85 So. 505; Burgin v Sugg, 204 Ala. 270, 85 So. 533.

A cross-bill must be considered as if it were an original bill, and jurisdictional facts must be averred. Code 1907, § 3118; Haralson v. Whitcomb, 200 Ala. 165, 75 So. 913; Ex parte Lavender, 207 Ala. 666, 93 So. 661. Had, then, the court jurisdiction to enter the decree on the averment of the cross-bill alleging that the complainant in the cross-bill was a resident of the state of Georgia, and that the respondent in the cross-bill resided in Gate City, in the state of Virginia? The note of submission was:

"This cause was submitted in behalf of complainant upon bill of complaint as amended and in behalf of respondent upon her answer and cross-bill, decree pro confesso, and testimony of Ida Lou Cooper and Mrs. B. M. Holcombe."

The decree of date September 27, 1922, recites the like submission for final "decree on cross-bill," and the bill as amended is "dismissed"; "respondent and cross-complainant is (held) entitled to the relief prayed for in her said cross-bill"; the bonds of matrimony between the parties "are hereby dissolved" on grounds of cruelty of the husband; and "it is further ordered, adjudged, and decreed by the court that the care, custody, and control of Doris Cooper, the minor child of complainant and cross-respondent and respondent and cross-complainant, be and hereby is awarded to the respondent and cross-complainant, the mother."

There was a motion to set aside the decree pro confesso against complainant in original bill and respondent in cross-bill and the final decree on grounds that- "On the 15th day of August, 1922, said respondent was served with process in said cause in Birmingham, Ala. On the 24th day of August, 1922, said respondent filed in said court her demurrer and answer to complainant's bill of complaint, and prayed among other things that said answer be considered as a cross-bill. On the motion of respondent the court made and entered an order in said cause, without notice to the complainant or his counsel of record, ordering and directing the complainant to be present and produce in the court on September 8, 1922, the minor child, Doris Cooper, for the purpose of determining the temporary custody of said child pending litigation. On September 6, 1922, complainant filed in this (that) court a motion which was properly served on the solicitor for respondent, moving the court to set aside the order of August 24, 1922, said motion being called up for hearing September 7, 1922, and which on motion of respondent's solicitor went over to September 8, 1922, on which motion no order has been made and is now pending. On September 8, 1922, upon hearing of motion filed August 24, 1922, of respondent to compel complainant to give security for court costs, alleging the nonresidence of the complainant, the complainant was ordered to give security for court costs, which complainant has done. That said motion of complainant filed September 6, 1922, touching temporary custody of child (order and decree by the court made on the 24th day of August, 1922), was still pending and unheard when on the 26th day of September, 1922, the register of this court entered a decree pro confesso against the complainant on the cross-bill of respondent. That on the 6th day of September, 1922, the complainant amended his bill of complaint and on that date filed the same in open court, adding a new party co-respondent in said cause. That said bill of complaint as amended has not yet been answered by the respondents." (Italics supplied.)

It was further averred:

That on September 26, 1922, the decree pro confesso "on respondent's original cross-bill was by the register of this court entered and a commissioner appointed to take oral testimony of respondent and one other witness in respondent's behalf"; that "on the 27th day of September, 1922, said respondent had a submission of said cause, without notice to the complainant or his counsel, upon which the complainant's bill of complaint as amended September 6, 1922, was by the court then and there dismissed, and, without complainant having had opportunity of being heard thereon, the respondent was granted a divorce from the complainant and control and custody of complainant's minor child, Doris Cooper; that upon the presentation of said motion September 8, 1922, touching temporary custody of said child, said child not being in court, your honor stated in open court that the court would not hear the matter touching temporary custody of the child until complainant brings the child within the jurisdiction of the court, upon which the solicitors for the complainant offered to have the child in court at any time the court would order the cause set for hearing; the matter was then passed up pending the giving of security for court costs by complainant, which complainant did in compliance with said order of the court"; that "the solicitor of record for respondent procured a submission of said cause upon and after decree pro confesso, without first filing a request to do so in writing, as required by section 3164 of 1907 Code of Alabama" (Gen. Acts 1915, p. 606); that "said testimony shows on its face that the court was without jurisdiction to grant said decree in favor of respondent and against the complainant on her cross-bill"; and that "said decree of divorce is void, because the court was without jurisdiction to hear and determine said cause on respondent's

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