Ex parte Burch, 6 Div. 410.

• Decision Date: 25 November 1938
• Docket Number: 6 Div. 410.
• Citation: 236 Ala. 662,184 So. 694
• Parties: EX PARTE BURCH. v. BURCH. BURCH
• Court: Alabama Supreme Court

184 So. 694

236 Ala. 662

EX PARTE BURCH.

BURCH v. BURCH.

6 Div. 410.

Supreme Court of Alabama

November 25, 1938

Original petition of Stella Burch for writ of prohibition to J. B Powell, Judge, County Court, Walker County, to prohibit respondent from entertaining jurisdiction in suit of Allen Burch against petitioner pending in said court.

Writ granted.

Norman Gunn, of Jasper, for petitioner.

Wiggins & Elliott, J. J. Curtis, and Herman Maddox, all of Jasper for respondent.

KNIGHT Justice.

This is a petition for writ of prohibition against the Honorable J B. Powell as Judge of the County Court of Walker County, Alabama, seeking to prohibit him, as such judge, from proceeding to entertain jurisdiction of a suit pending in said court, wherein Allen Burch is complainant and petitioner, Stella Burch, is defendant.

The material facts as disclosed by the petition are as follows:

Allen Burch, the husband of petitioner, filed in the Circuit Court of Walker County a bill for divorce against his wife, in which he alleged that since his marriage to the petitioner she had committed divers acts of adultery with divers persons, whose names were to complainant unknown. This bill was filed on September 24, 1934. To this bill the wife filed an answer and cross bill, in which she denied that she had ever been guilty of adultery with any one, averred that she was without property or means of support, and prayed for alimony, both temporary and permanent, counsel fees, and for the custody of the two childdren, offsprings of the marriage union.

The court ordered a reference to the register to ascertain and report what would be a reasonable allowance for temporary alimony and counsel fees. The register thereupon proceeded to hold the reference, and reported that the sum of $5 per week would be a proper allowance for temporary alimony, and twenty-five dollars would be a reasonable allowance for solicitor's fees. This report was duly confirmed by the court. Thereafter the complainant made but slight effort to comply with this decretal order, and was cited more than once to show cause why he should not be adjudged in contempt for failing to pay this temporary alimony.

On May 30th, 1936, the complainant filed his motion in the circuit court to dismiss his bill of complaint, but without prejudice, and on June 1st, 1936, the circuit court entered an order dismissing "complainant's original bill of complaint." The third paragraph of this order was as follows: "It is further ordered that nothing contained herein shall operate to prejudice or bar the complainant from filing or instituting a new suit or cause of action for recovery of the relief prayed for in complainant's original bill of complaint."

On June 6th, 1936, after the original bill had been dismissed, the respondent Stella Burch filed in the circuit court a sworn petition setting forth that the said Allen Burch had not paid the solicitor's fee allowed her, and that he was in arrears in the payment of her temporary alimony, and prayed for rule nisi against the said Allen Burch requiring him to appear and show cause why he should not be held in contempt in failing to comply with the orders of the court in the matter of the payment of said alimony and counsel fees. On the hearing of this petition, the court held the said Allen Burch in contempt, and ordered his arrest and imprisonment for five days unless he should pay forthwith as much as fifty dollars on alimony and counsel fees. Burch complied with this order, and was not imprisoned.

On April 9th, 1937, the said Allen Burch filed in the Circuit Court of Walker County his second bill for divorce against the said Stella Burch, alleging, as theretofore, acts of adultery on the part of the wife, committed prior to, and since March 2nd, 1934.

To this second bill of complaint the wife filed answer and cross bill, averring that she was without property or means of support, denying that she had ever been guilty of the misconduct charged, and praying for alimony, temporary and permanent, and counsel fees. She also prayed for the custody of her two children.

In neither of her two cross bills did the respondent wife pray for divorce, though she, in each cross bill, charged her husband with many acts of adultery.

On May 20th, 1938, the complainant again appeared and moved the court to dismiss his second bill of complaint. The court on the same day entered an order dismissing this bill. This second order of dismissal contained the following provision: "but without prejudice to the rights of complaint (complainant) to file another suit involving the same cause of action."

On the 25th day of May, 1938, which was just five days after the order of dismissal of the second suit was made and entered in the circuit court, the said Allen Burch filed his third suit for divorce, but this time filed it in the County Court of Walker County. In this third suit he again charged his wife with adultery, as he had in the two previous suits. In this third bill, the complainant seeks to have the court award him the custody of the two children, offsprings of the marriage with respondent.

The petitioner, Stella Burch, has now filed in this court her petition for writ of prohibition against the respondent, J. B. Powell, as Judge of the County Court of Walker County, seeking to prohibit him, as such judge, from proceeding to entertain jurisdiction of the divorce suit filed in the said county court, upon the ground that the Circuit Court of Walker County has assumed, and still has, jurisdiction of the matters involved in said cause.

When the petition was filed here, the court ordered a rule nisi to issue to Judge J. B. Powell.

In response to this rule, Judge Powell has filed his answer. From this answer the facts above stated are substantially admitted, but the respondent judge takes the position that the dismissal of each of the two original bills filed by Allen Burch, the complainant in each, carried with them the cross bills. The said respondent further takes the position, and so states in his answer, that the County Court of Walker has jurisdiction to try and determine the matters involved in the cause filed in his court by Allen Burch; that the two bills theretofore filed by Burch in the Circuit Court had been dismissed out of said Circuit Court without prejudice, and that at the time of the filing of the bill in the County Court of Walker County there was no pending bill for divorce between said parties in the circuit court. That "by express statute the County Court has jurisdiction of divorce proceedings concurrent with the Circuit Court of Walker County."

It is obvious from the answer of the respondent judge that he will proceed to hear and determine the cause filed in his court by the said Allen Burch unless he is prohibited from so doing by order and judgment of this court.

In approaching a consideration of the question presented by the petition and answer of the respondent, we are not unmindful of the fact that prohibition is not only an extraordinary, but a drastic writ, which is to be employed with great caution, for the promotion of justice and to secure order and regularity in judicial proceedings, "and should be issued only in cases of extreme necessity." It is not a favored writ, and can be invoked only in cases where the party complaining has no other adequate remedy. Goodwin, Judge, v. McConnell, 187 Ala. 431, 65 So. 788; Ex parte Brown, 58 Ala. 536; Ex parte Roundtree, 51 Ala. 42; Ex parte Cox, 230 Ala. 656, 162 So. 670; Anders et al. v. Lindsey, Judge, et al., 203 Ala. 48, 82 So. 8.

"Prohibition is not a revisory writ, and should never be awarded, unless the complaining party has been drawn ad aliud examen into a jurisdiction or mode of procedure disallowed by the laws of the land, or where, by handling matters clearly within their cognizance the inferior courts transgress the bounds prescribed to them by law." Ex parte Boothe, 64 Ala. 312; Ex parte Roundtree, 51 Ala. 42; Ex parte State, 51 Ala. 60; Ex parte Hamilton, 51 Ala. 62; Ex parte Brown, 58 Ala. 536; Ex parte Mobile & O. R. Co., 63 Ala. 349; Atkins v. Siddons, 66 Ala. 453; Anders et al. v. Lindsey, Judge, et al., supra.

In the case before us it appears that Allen Burch had in the first instance made formal selection of the Circuit Court of Walker County as the tribunal which should hear and determine the issues raised by his first bill for divorce. He invoked the jurisdiction of...