Davidson v. Davidson

• Decision Date: 20 October 1921
• Docket Number: 6 Div. 298
• Citation: 206 Ala. 493,90 So. 493
• Parties: DAVIDSON v. DAVIDSON.
• Court: Alabama Supreme Court

90 So. 493

206 Ala. 493

DAVIDSON v. DAVIDSON.

6 Div. 298

Supreme Court of Alabama

Oct. 20, 1921

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Bill by Mrs. B.P. Davidson against J.F. Davidson for review of decree denying complainant divorce and alimony. From a decree denying relief the complainant appeals. Affirmed.

Edgar Allen, of Birmingham, for appellant.

Gibson & Davis, of Birmingham, for appellee.

SOMERVILLE J.

This proceeding is by a bill of review to correct the alleged error of a former decree between these parties; the equity of the bill resting upon its allegation of newly discovered testimony, with an appropriate showing as to its nature and effect, and a sufficient negation of negligence on the part of complainant as to its seasonable discovery and production. Allgood v. Bank of Piedmont, 130 Ala. 237, 29 So 855; Banks v. Long, 79 Ala. 319.

The decree sought to be reviewed was rendered in 1917 by the circuit court of Jefferson county, in equity, and denied relief to the complainant herein in a proceeding by her for divorce and alimony, wherein she represented that she had been the wife of one Vitter, of New Orleans, and that, after she had established illicit relations with this respondent she secured a divorce from Vitter, and then continued to live with respondent in the relation of husband and wife with such intention and under such circumstances as to effect a common-law marriage.

The showing now made is that the adverse decree in the original cause was due solely to complainant's failure to prove that she had obtained a divorce from Vitter, thus leaving a fatal impediment in the way of her alleged marriage to respondent, which, it is alleged, was otherwise satisfactorily shown, but that she has since discovered, what she then had no reason to suspect, that during her cohabitation with Vitter he had another lawful living wife and hence that she was never his lawful wife, and could therefore establish a legitimate marriage relation with respondent.

We have examined all of the evidence with painstaking care, and we are not reasonably satisfied that complainant's originally meretricious relations with respondent were ever converted by their mutual understanding, or intention, or agreement, into the status of a common-law marriage.

The record shows that complainant has been guilty of testifying with flagrant falsity when it appeared to serve her...