Ex parte McLendon

• Decision Date: 11 April 1940
• Docket Number: 6 Div. 656.
• Parties: EX PARTE MCLENDON.
• Court: Alabama Supreme Court

195 So. 733

239 Ala. 564

EX PARTE MCLENDON.

6 Div. 656.

Supreme Court of Alabama

April 11, 1940

Rehearing Denied May 16, 1940.

Original petition of C. A. McLendon for mandamus to E. M. Creel, as Judge of the Tenth Judicial Circuit, County of Jefferson requiring respondent to set aside and vacate a decree allowing alimony pendente lite and attorney's fee to defendant in the cause pending in said Circuit Court, wherein petitioner was complainant and Fannie Lou McLendon was respondent.

Mandamus denied.

Under Georgia Constitution, where, in suit by wife for divorce, a verdict of total divorce was returned, and later a second verdict of total divorce and restoring maiden name to wife was returned, a decree entered on the second verdict was not essential to a dissolution of the marriage relation.

The petition alleges that after filing of bill for divorce by petitioner, the defendant in said suit filed a motion for a reference to the register to ascertain and report, inter alia, what would be a reasonable allowance to defendant as alimony pendente lite, and what would be a reasonable solicitor's fee for her counsel. Petitioner, as complainant, filed written contest of the motion for reference. The court entered a decree of reference, in obedience to which the register caused a reference to be held. On this reference complainant offered in evidence "an exemplification of the records of the Superior Court of Dougherty County, Georgia, in cause numbered 3246, wherein Fannie Lou Hand was plaintiff and C, H. Hand was defendant", reciting that:

"The above styled cause for divorce was filed in the office of the Clerk of the Superior Court, Dougherty County, Georgia on July 1, 1911.

"The first verdict of total divorce was returned by a jury on November 9, 1911. The verdict is in words and figures as follows: 'Mrs. Fannie Lou Hand vs. C. H. Hand. We the jury find for the plaintiff total divorce. J. A. Miller, Foreman.'

"The second verdict of total divorce and restoring maiden name to plaintiff, and the court awarding custody of child to plaintiff, was returned by a jury on July 18, 1912. The second verdict of jury awarding total divorce and restoring maiden name to plaintiff and the court's order awarding custody of child to plaintiff, is in words and figures as follows: '2nd. Verdict total divorce and restoring maiden name to pltff. and court awards custody of child. June 18, 1912' 'Mrs. Fannie Lou Hand vs. C. H. Hand, Libel for divorce. We the jury find for the plaintiff a total divorce and we restore to her, her maiden name. W. Harris, Foreman.'

"The above and foregoing appears on the issue docket of this court, and upon the minutes of the court. No final order or final decree of divorce in said cause appears on the minutes of this court, or of record in this court, or in the files of said court, in said above styled cause."

Complainant (petitioner here) filed motion "to dismiss the petition for reference filed in this cause and also to dismiss the cross-bill filed by the respondent and cross complainant in this cause on the following grounds: 1. * * * That it appears from this certificate of Howard Clark, clerk of the Superior Court of Dougherty County, Georgia, * * * that there never was any final order or final decree of divorce rendered in favor of said Fannie Lou Hand. 2. That under the law of the State of Georgia until there is a final order or final decree of divorce there is no divorce in favor of Fannie Lou Hand against C. H. Hand and she is still the wife of the said C. H. Hand and that she had no right under the laws of the State of Georgia to contract a marriage with C. A. McLendon, the complainant and cross respondent in this case;" and 3, "that there is no authority on the part of the register to proceed and hold a reference in this cause or to find that the complainant in the case at bar is liable for either alimony or solicitor's fees."

Walter S. Smith and Walter S. Smith, Jr., both of Birmingham, for petitioners.

Ellis, Lindbergh & Ellis, of Birmingham, for respondent.

BROWN Justice.

This is an original petition, filed here by the complainant in a divorce proceeding, seeking to review and reverse the decree of the circuit court of Jefferson County, sitting in equity, allowing alimony pendente lite and solicitor's fees, to the defendant to aid her in defending against the charges made in the bill.

The material facts, are, that the petitioner filed his bill for divorce on September 12, 1939, against Fannie Lou McLendon alleging, inter alia:

"That complainant and respondent intermarried on to-wit, October 31, 1938, in Jefferson County, Alabama, and ever since have been, and now are husband and wife.

"That the said Fannie Lou McLendon became addicted after marriage to habitual drunkenness, and manifested her drunken condition by profane discourse and indecent conduct."

The bill prayed for divorce a vinculo matrimonii.

On September 28, 1939, the defendant answered admitting the relation of husband and wife as alleged in the bill, but denied the existence of the alleged ground for divorce--habitual drunkenness.

On November...