Ex parte O'Connell, 1 Div. 676

CourtSupreme Court of Alabama
Citation92 So.2d 911,265 Ala. 526
Docket Number1 Div. 676
PartiesEx parte John B. O'CONNELL
Decision Date21 February 1957

Page 911

92 So.2d 911
265 Ala. 526
Ex parte John B. O'CONNELL
1 Div. 676.
Supreme Court of Alabama.
Feb. 21, 1957.

[265 Ala. 527]

Page 912

Caffey, Gallalee & Caffey, Mobile, for petitioner.

Cecil G. Chason, Foley, for respondent.


This is an original petition to this Court for a mandamus directed to the judge of the circuit court of the Twenty-eighth Circuit sitting in Baldwin County, to require him to vacate an interlocutory order providing for the maintenance pendente lite of Mrs. Eva B. O'Connell in a suit in equity wherein she is complainant and this petitioner is respondent. In that suit maintenance without divorce is sought.

We shall treat only those contentions made in brief for the petitioner. There is no brief on file for the respondent.

A plea in abatement was filed by respondent asserting that neither the complainant nor respondent was a resident of Baldwin County at the time the suit was filed and had not been for one year before the suit was filed as alleged in the bill, and did not reside in that county when the separation occurred. After holding the plea legally sufficient, the trial judge set it down for hearing on proof as to its allegations. On that hearing proof was offered as to its truth, and the testimony of witnesses taken (some of which was alleged to be by authority of Act No. 375, approved September 8, 1955 [Acts 1955, page 901]). The cause was submitted on the issues made by the plea in abatement. The trial court held, on April 26, 1956, that the plea was not proven and decreed that it be overruled and denied, and set the cause down for hearing on May 16, 1956 in accordance with an agreement entered into by all the parties in open court.

On May 18, 1956 there was another hearing. No evidence was taken on that day, but the court entered an interlocutory decree ordering the respondent (this petitioner)[265 Ala. 528] to pay complainant therein, 'pending the final outcome of this matter, the sum of one hundred fifty dollars ($150.00) per month', and fixed $500.00 as a reasonable attorney's fee to be paid by the respondent to the solicitor for the complainant, the Hon. Cecil G. Chason of Foley, Alabama. The petition to this Court is to require the Hon. Hubert M. Hall to vacate and annul the order made May 18, 1956 in respect to support money and solicitor's fee. This Court issued the rule nisi, and in response thereto the judge admitted the alleged matters of record.

Questions of law only are presented by the petition and by the supporting brief. The contentions are (1) that the order sought to be vacated is void or erroneous because it orders interlocutory relief, and the bill seeking such relief is not sworn to as required by Equity Rule 12, Code 1940, Tit. 7 Appendix (2) the bill of complaint is insufficient in its allegations to justify such an order; and (3) that the testimony supporting the order is incompetent and illegal. No question is here involved with respect to the plea in abatement.

There was no petition for an allowance for maintenance and attorney's fee except as it is sought in the original bill. That of...

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3 cases
  • McDowell v. McDowell
    • United States
    • Alabama Court of Civil Appeals
    • May 12, 1971
    ...223 Ala. 557, 137 So. 666; Jones v. Jones, 233 Ala. 642, 173 So. 49; Brewer v. Brewer, 259 Ala. 149, 66 So.2d 450; Ex parte O'Connell, 265 Ala. 526, 92 So.2d 911. We recognize the proposition advanced by appellee that in a suit for divorce, though there is not shown a right to divorce, if t......
  • Parrish v. Davis
    • United States
    • Supreme Court of Alabama
    • February 21, 1957
  • Schoonmaker v. Schoonmaker
    • United States
    • Supreme Court of Alabama
    • September 15, 1960
    ...the husband has failed or refused to provide for the wife's support and maintenance. Reliance is had upon the case of Ex parte O'Connell, 265 Ala. 526, 92 So.2d 911, where there was a total absence of any averment to the effect that the respondent husband had failed or refused to provide fo......

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