Ex parte Moss, 3 Div. 195

• Citation: 179 So.2d 753,278 Ala. 628
• Decision Date: 30 September 1965
• Docket Number: 3 Div. 195
• Parties: Ex parte Merle M. MOSS.
• Court: Supreme Court of Alabama

Page 753

179 So.2d 753

278 Ala. 628

Ex parte Merle M. MOSS.

3 Div. 195.

Supreme Court of Alabama.

Sept. 30, 1965.

Rehearing Denied Nov. 18, 1965.

Capell, Howard, Knabe & Cobbs, Montgomery, for petitioner.

Goodwyn & Smith, Montgomery, for respondent.

LAWSON, Justice.

This is an original petition by Merle M. Moss praying that a writ of mandamus issue to the Honorable William F. Thetford, as Judge of the Circuit Court of Montgomery County, in Equity, directing him to set aside a decree sustaining a plea in abatement to the venue of a divorce suit filed by the petitioner against her husband, Kenneth E. Moss, and to render a decree denying the plea in abatement filed by the said Kenneth E. Moss.

It is insisted that the present matter should not be reviewed by mandamus because the questions here involved can be ultimately reviewed on appeal.

This court has held that mandamus will not ordinarily be granted if the matter complained of, including a ruling on a plea in abatement, can be ultimately presented to this court through the medium of an appeal from a final decree. Ex parte Brooks, 264 Ala. 674, 89 So.2d 100; Ex parte Little, 266 Ala. 161, 95 So.2d 269; Harris v. Elliott, 277 Ala. 421, 171 So.2d 237. And it has been held that expense and inconvenience are not sufficient to make an expection to the aforesaid general rule. Ex parte Brooks, supra.

However, exceptions to the general rule are mentioned in Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432. One of the exceptions is that in the sound discretion of this court the writ of mandamus may be employed to review the ruling in divorce cases on a plea in abatement raising the question of venue, the theory being that there is a public interest involved in such cases. Ex parte Aufill, 268 Ala. 43, 104 So.2d 897.

We have reviewed by mandamus proceedings decrees denying pleas in abatement in divorce cases in several instances. Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510; Ex parte Davis, 249 Ala. 221, 30 So.2d 648; Ex parte Lewis, 262 Ala. 463, 79 So.2d 792; Ex parte Aufill, supra. We can see no valid reason why the same method of review should not be employed to review a decree sustaining a plea in abatement filed in a divorce case. Accordingly, we shall proceed to review the decree sustaining the plea in abatement by way of mandamus.

The circumstances leading up to the filing of the petition for mandamus, as shown by the petition, are as hereafter set out.

On March 5, 1965, the petitioner, Merle M. Moss, filed in the Circuit Court of Montgomery County, in Equity, a sworn bill of complaint against her husband, Kenneth E. Moss, praying 'for alimony and support pendente lite, for the production of certain papers on the part of Kenneth E. Moss and for a divorce, custody of the child, settlement of property rights, and for permanent alimony and support for Complainant and the minor child of the marriage.' As grounds for the divorce the bill charged cruelty and abandonment. The bill, as amended, according to the averments of the petition for mandamus, alleged that the complainant therein, Merle M. Moss, lived in Huntsville, Alabama, and that the respondent therein, Kenneth E. Moss, lived in Montgomery, Alabama.

Kenneth E. Moss was served with a copy of the complaint on March 5, 1965, by the Sheriff of Montgomery County.

Judge Thetford on March 9, 1965, set a hearing on complainant's prayer for support and alimony pendente lite for March 22, 1965, and ordered Kenneth E. Moss to deliver to the deputy register of the circuit court before March 22, 1965, papers and documents in accordance with the request of complainant. The hearing so set was continued at the request of the attorney for Kenneth E. Moss.

On March 24, 1965, Kenneth E. Moss filed his sworn plea in abatement, alleging that he was a nonresident of Alabama and was such at the time Merle M. Moss filed her complaint in the Circuit Court of Montgomery County, in Equity, and therefore the Circuit Court of Montgomery County was without jurisdiction to try and determine the cause and that it should be abated.

Evidence on the merits of the plea in abatement was taken orally before Judge Thetford on April 28, 1965. In her petition for mandamus, as amended, Merle M. Moss summarizes the testimony taken on the hearing as follows:

'The testimony showed that Kenneth E. Moss was domiciled in Montgomery County; that he still owned his home here; that he still operated the Diplomat Inn here, but that he was now building a motel in Georgia and had moved his furniture to Georgia on February 6 or 7, 1965 * * *; that a prior divorce proceeding had been filed in Huntsville; that at that time he was residenced in Montgomery and had filed a plea in abatement to that effect in said proceeding. * * *'

On May 18, 1965, Judge Thetford issued an order sustaining the plea in abatement and ordering the cause to be transferred to the Circuit Court of Madison County, in Equity, in accordance with the provisions of Act 76, approved September 15, 1961, Acts of Alabama 1961, Vol. II, p. 1953.

The petition for mandamus further avers that the said order of Judge Thetford is erroneous for the following reasons:

'The plea was defective in that it related only to part of the bill of complaint; the plea is to the venue and venue is not for the benefit of a nonresident. Kenneth E. Moss waived his right to file a plea in abatement in that he failed to file it before the date set for hearing and also in that he requested a continuance before the filing of the plea. The matrimonial domicile of the parties at the time of the separation was Montgomery County, Alabama, and Kenneth E. Moss could not deprive the Circuit Court of Montgomery County of venue by moving from the State.'

The foregoing completes our summary of the averments of the petition for mandamus.

As shown above, petitioner first asserts that the plea in abatement was defective 'in that it related only to part of the bill of complaint.' In brief filed here on behalf of the petitioner, her contention as to this point is explained in the following language:

'The subject matter of the complaint includes divorce, temporary support, and child custody. Petitions involving temporary support, and child custody, may be heard in any place where the defendant or respondent is found and properly served. The plea in abatement in this case therefore is not good as to these two phases of the petition. The plea relates only to divorce and is not a plea to the whole complaint.'

The plea in abatement, as we view it, was directed to the bill as a whole and not to its several aspects. It sought the abatement and transfer of the entire suit. Since the plea averred that complainant was not a resident of Montgomery County where the suit was filed, but of Madison County, and that respondent was a nonresident of this state, the relief sought by the plea was obviously grounded on that part of § 28, Title 34, Code 1940, which is italicized below:

'Bills for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred; if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides.' (Emphasis supplied)

It seems to be petitioner's contention in regard to the point now under consideration that even though it be conceded (which petitioner does not concede, as will be hereinafter shown), a suit for divorce against a nonresident must be brought in the circuit court of the county where the complainant resides, if the question of venue is properly raised by one who can raise it, nevertheless Judge Thetford erred in sustaining the plea in abatement addressed to the bill as a whole and in transferring the entire cause to the Circuit Court of Madison County because in her bill, in addition to praying for an absolute divorce, petitioner prayed for 'temporary support and child custody,' which petitioner says is a transitory action which could be maintained in Montgomery County because jurisdiction of the person of the respondent, Kenneth E. Moss, was obtained in Montgomery County by personal service made by the sheriff of that county.

In support of her contention that an action for 'temporary support and child custody is transitory and may be brought in any county where jurisdiction of the person of respondent is obtained,' petitioner relies upon Ex parte Hale, 246 Ala. 40, 18 So.2d 713. The complainant in that case did not seek an absolute divorce. She prayed that the court grant her a legal separation from respondent and award her custody of their minor child and also award to her an allowance for the support of herself and child. The respondent filed a plea in abatement averring, among other things, that neither he nor the complainant was a resident of Alabama at the time the bill was filed. The plea in abatement was struck on motion. We review that action in a mandamus proceeding but denied the peremptory writ, although we observed that the motion to strike the plea was an inappropriate method of testing its sufficiency. We said the ruling on the motion to strike the plea was without injury because '[i]t is therefore clear enough the plea was wholly insufficient to so much of the bill which seeks separate maintenance and support, as well as control of the child.'

In the opinion in the Hale case it was said, in effect, that the prayer for 'a legal separation' was tantamount to a prayer for a divorce from bed and board. The opinion in that case contains the following language:

' A bill in chancery seeking in one aspect maintenance and support for a wife, and in one aspect the custody of, and in another aspect maintenance and support for, a minor child should be brought where the husband actually resides or where he is subject to personal service of process. * * *

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' The courts generally agree that...