Ex parte State ex rel. Tillery

• Citation: 217 Ala. 656,117 So. 294
• Decision Date: 07 June 1928
• Docket Number: 6 Div. 137
• Parties: Ex parte STATE ex rel. TILLERY.
• Court: Supreme Court of Alabama

117 So. 294

217 Ala. 656

Ex parte STATE ex rel. TILLERY.

6 Div. 137

Supreme Court of Alabama

June 7, 1928

Original petition of J.T. Tillery for writ of prohibition directed to Hon. Henry B. Foster, as Judge of the Circuit Court of Tuscaloosa County. Writ awarded.

W.M Adams, of Tuscaloosa, for appellant.

T.B Ward, J.M. Ward and de Graffenried & Foster, all of Tuscaloosa, for appellee.

THOMAS J.

The petition was for prohibition to the circuit judge to prevent further procedure as indicated in the pleading, in the cause held coram non judice. Tillery v. Tillery (Ala.Sup.) 115 So. 27, 28.

On the former appeal it was declared the decree rendered was "void for want of jurisdiction"; that subsequent proceedings therein were likewise "void and would not support an appeal." This being the effect of the bill and pleading theretofore filed and action thereon, before amendment averring the jurisdictional facts, there was not sufficient predicate on which to base the action for pendente allowances sought by the wife.

The facts averred in the answer of the judge:

"That it is true that on, to wit, the 9th day of March 1928, the said Sallie J. Tillery filed in the circuit court of Tuscaloosa county, Ala., in equity, a petition praying for an award for temporary alimony, or alimony pendente lite. Respondent admits that the petition for alimony pendente lite was made a part of the original cause in this court and that at the time of the filing of said petition no amendment to the original bill had been filed. Respondent, further answering, says that the solicitors for complainant indicated an intention to file an amendment to the original bill and that on the 9th day of April, 1928, an amendment was filed, a copy of which is hereto attached, marked 'Exhibit A,' and made a part hereof. Respondent further says that it was the opinion of the respondent at the time, and still is, that the original bill of April 27, 1926, and the proceeding based thereon, are capable of amendment; and respondent further says that the amendment filed and marked 'Exhibit A' hereto relates back to the filing of the original bill of complaint and confers jurisdiction upon said court to hear and determine all questions of divorce and alimony. A copy of the original bill of complaint filed April 27, 1926, is hereto attached, marked 'Exhibit B' and made a part hereof.

"(4) For answer to the fourth paragraph of said petition respondent says that it

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