Cox v. Dodd
Decision Date | 09 October 1941 |
Docket Number | 7 Div. 612. |
Citation | 242 Ala. 37,4 So.2d 736 |
Parties | COX v. DODD. |
Court | Alabama Supreme Court |
Rehearing Denied Nov. 13, 1941.
Roger C. Suttle and O. R. Hood, both of Gadsden, for appellant.
James A. Embry, of Ashville, and Victor H. Smith, of Birmingham for appellee.
The appeal sought a review of the decree of the circuit court in declining the husband's bill for divorce, allowing alimony to the wife payable in monthly installments, and allowing her reasonable solicitor's fee.
The several assignments of error duly challenge such finding and decree of the court in favor of the wife. This decree is of date of July 3, 1939. The appeal was taken and supersedeas given on the date of December 8, 1939; the transcript was filed in this court on May 1, 1940. On May 21, 1940, the death of appellant is suggested and leave asked to revive in the name of appellant's personal representative when made known to the court.
The case was revived on January 14, 1941, in the name of Pennie Dodd Cox, as administratrix of the original appellant.
Under well-recognized authorities the provisions of the final decree allowing alimony to the wife, payable in installments were rendered ineffective after the death of Mr. Dodd. Borton v. Borton, 230 Ala. 630, 162 So. 529, 101 A.L.R 320. This rule, however, did not affect the gross sum allowed on reference and decree as a reasonable attorney's fee to the wife. Smith v. Rogers, 215 Ala. 581, 112 So 190.
The further question presented is whether the appeal from a decree denying the appellant's bill for divorce, on statutory grounds, is abated by the death of appellant, since the appeal was perfected in this court before his death by the filing of the transcript.
The rule of the general decisions, including our Pearson and Wife v. Darrington, 32 Ala. 227, 253, is: * * *"
See 1 Corpus Juris, § 404, p. 208; 1 C.J. Secundum, Abatement and Revival, § 128, p. 176; 1 C.J. p. 171, Note 79; 1 C.J. S., Abatement and Revival § 128.
Appellant's counsel says: * * *."
The rights of the wife under the statute as to the property of the husband dying intestate (as homestead, exemption of personal property and rights of dower) are such "property rights that are involved" in a suit by a husband for divorce and are unaffected by the death of the husband.
It is a further general rule that the death of a party, pending an appeal or writ of error, furnishes no grounds for the abatement of the suit. In such case it is the common practice for the appellate court to affirm or reverse the judgment nunc pro tunc. "The rule applies in most jurisdictions, although not in all, in cases where there has been a judgment for plaintiff on a cause of action which does not survive, as by the judgment the cause of action is merged therein." It is held, however, that the rule is otherwise where a judgment is rendered for defendant on a cause of action which does not survive and a party dies pending the appeal. In such case the cause of action is that on which the suit was orginally founded, and does not survive.
If appellant dies after his appeal has been allowed the court still retains jurisdiction during the same term for the purpose of permitting the suit to be revived in the name of his administrator and of permitting the administrator to file a bill of exceptions, if the cause is one that survives. Powe v. McLeod, 76 Ala. 418; Mayor, etc., of City of Anniston v. Hurt, 140 Ala. 394, 402, 37 So. 220, 103 Am.St. Rep. 45 and note; Pope v. Welsh's Adm'r, 18 Ala. 631; 1 Corpus Juris, 169, 170, § 289; 1 C.J.S., Abatement and Revival, § 128.
It is declared by Mr. Justice Hiscock, in Re Crandall's Estate, 196 N.Y. 127, 89 N.E. 578, 579, 134 Am.St.Rep. 830, 17 Ann.Cas. 874, that:
In Stanhope v. Stanhope, 11 P.D. 103, 86 L.Rep. [1885] 103, L. J. Cotton said if the petitioner dies, has his personal representative any right to revive the suit (for divorce) or to have the decree made absolute? It would be a singular thing if, after marriage has been dissolved by death, there were power to declare it at an end on another ground.
Such was the rule declared in Downer v. Howard, 44 Wis. 82; Nickerson v. Nickerson, 34 Or. 1, 48 P. 423, 54 P. 277; Thomas v. Thomas, 57 Md. 504. Such are the general decisions as to the cause of action for divorce, which cause dies when one of the parties is taken from this life. See 1 C.J. p. 208,§ 404; 1 C.J.S., Abatement and Revival, § 128.
The decisions in this jurisdiction cited by appellant to the stated rule (1 C.J. p. 169, § 289; 1 C.J.S., Abatement and Revival, § 128) were not in divorce cases, where the cause of action dies with the party.
The cases cited from this jurisdiction are where the suit involved properties, examples being Powe v. McLeod, 76 Ala. 418 ( ); Mayor, etc., of Anniston v. Hurt, 140 Ala. 394, 402, 37 So. 220, 103 Am.St.Rep. 45 (the petition was for mandamus to compel payment of a judgment); and Pope v. Welsh's Adm'r, 18 Ala. 631 ( ).
The appellant cites §§ 5712 and 6147, Code of 1923, Code 1940, T. 7, §§ 150 and 808. These provisions of the statute are "for the revival of 'actions' when the 'cause of actions' survives, and for the abatement thereof when the 'cause of action' does not survive." Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228, 237.
We have indicated by the foregoing authorities that the cause of action for divorce did not survive, the relation of husband and wife being terminated on the death of one of the parties. However, in 1 Corpus Juris, p. 171, § 289, it is said: * * *." 1 C.J.S., Abatement and Revival, § 128.
The note to the above necessary rule is as follows:
In 17 Am.Jur. p. 378, § 462, the rule of the cases is thus...
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...So. 104; Bagwell Steel Co. v. Tinker, 256 Ala. 585, 56 So.2d 114; Land v. Craig, 271 Ala. 580, 126 So.2d 221. With respect to Cox v. Dodd, 242 Ala. 37, 4 So.2d 736, we have examined the original record filed in this court and find that the record was filed here May 1, 1940; the death of app......
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Shaddix v. Wilson
...administrator, Alton Shaddix. On April 20, 1954, the order of revival was entered and the cause submitted in this court. See Cox v. Dodd, 242 Ala. 37, 4 So.2d 736. We have heretofore stated that there are 21 assignments of error. But assignments of error 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14......
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...43(a), Ala. R. App. P., provides that an appeal "shall not abate" upon the suggestion of the death of a party. See Cox v. Dodd, 242 Ala. 37, 39, 4 So.2d 736, 737 (1941) ("It is a further general rule that the death of a party, pending an appeal ..., furnishes no grounds for the abatement of......
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Thomas v. Thomas)
...by divorce is necessarily terminated and absolutely abated.” Jones v. Jones, 517 So.2d 606, 608 (Ala.1987) (citing Cox v. Dodd, 242 Ala. 37, 4 So.2d 736 (1941); and Killough v. Killough, 373 So.2d 336 (Ala.Civ.App.1979)). Further, this Court has held that not only does a pending divorce act......