Ex parte Jones

• Decision Date: 06 July 1910
• Parties: EX PARTE JONES.
• Court: Alabama Supreme Court

53 So. 261

168 Ala. 183

EX PARTE JONES.

Supreme Court of Alabama

July 6, 1910

In the matter of petition for mandamus by J. W. Jones. Mandamus granted.

Kidd &amp Darden, for appellant.

Riddle Ellis & Kelley, for appellee.

MAYFIELD J.

Mary Jones filed her bill in the county court of Shelby county against her alleged husband, J. W. Jones, praying a divorce on the ground of cruelty. After service upon respondent, but before answer or default for want of answer, complainant applied to the judge of that court, the Honorable E. S Lyman, for alimony pendente lite. The judge thereupon ordered a reference to the register to ascertain and report what would be a reasonable allowance pendente lite, and what would be a reasonable allowance for a solicitor's fee to prosecute the suit for divorce.

The respondent appeared by counsel specially for the purpose of resisting the application for alimony pendente lite. The respondent on the hearing of this motion through his counsel claimed that complainant was not his lawful wife, and alleged that she had a lawful husband living when she attempted to be married to the respondent and consequently the alleged marriage between complainant and respondent was void, and was so void on account of the fraud of complainant thus perpetrated upon respondent. The respondent filed a plea to this effect, and offered to prove the plea if the court would allow the proof. The court declined to allow proof of the fact of marriage upon that application, stating to counsel that proof of that fact at that stage of the proceeding was premature, that the bill made out a prima facie proof of marriage between the parties, and that for the purposes of the hearing of that application the court was confined to the allegations of the bill; and refused to hear or allow any evidence upon the question of marriage vel non and ordered the register to ascertain and report what would be reasonable allowance for such purposes pending the suit. The respondent subsequently appeared and moved the court to set aside the order allowing alimony pendente lite upon practically the same grounds urged against the making of the order, and offered additional proof to show that complainant was the wife of one Ridgeway, and not of respondent. The court overruled the motion for the reason that the question of the marriage between the parties could not be gone into at that time, and further stated that the court was concluded by the allegations of the bill, so far as these facts were concerned. The register held the reference accordingly, and reported his findings to the court. The respondent filed his exceptions to the report. The complainant subsequently moved the court to confirm this report and order the amounts paid by the respondent. The respondent appeared and resisted this motion, for the reasons heretofore assigned and probably...