Falley v. Falley

• Decision Date: 14 December 1909
• Citation: 163 Ala. 626,50 So. 894
• Parties: FALLEY v. FALLEY.
• Court: Alabama Supreme Court

50 So. 894

163 Ala. 626

FALLEY v. FALLEY.

Supreme Court of Alabama

December 14, 1909

Appeal from Chancery Court, Crenshaw County; L. D. Gardner Chancellor.

Suit by Susan Falley against Jeff Falley. From a decree for complainant, respondent appeals. Affirmed.

Parks &amp Rankin, for appellant.

Foster Samford & Carroll, for appellee.

McCLELLAN J.

The decree appealed from granted appellee a divorce, and, as prayed in her bill, she was given the custody of the children of the union. The respondent made no defense to the bill, and decree pro confesso appears to have been regularly entered against him. Subsequent to the entry of this decree the solicitors of record for the complainant posted a letter addressed to the register, and it was promptly received by him, noting the inclosure therewith of the testimony taken in support of the averments of the bill, and also requesting him to make out a note of the testimony in the cause. The letter then proceeds: "After making out note of testimony, send it to us for submission in vacation. We will attend to having it submitted. * * *" The note of testimony recites, preliminarily, the submission of the cause in vacation. By the act approved December 14, 1898 (Gen. Acts 1898-99, p. 118), now Code 1907, § 3164, the submission of, and adjudication in, divorce cases in vacation was provided; certain conditions being laid upon the power and right to so submit and adjudge. It is now objected for appellant that this decree is null, because no such written request was filed with the register as the cited statute required.

The only stipulation with respect to the mode of expression of the desire for submission in vacation is that it shall be in writing and shall be filed with the clerk. The legal term "file" has been treated here in Phillips v. Beene's Adm'r, 38 Ala. 248, and it was then ruled, and with obvious correctness we think, that a paper was filed when it was delivered to the proper official charged with the duty of filing the paper and with making the appropriate indorsement thereon. It is evident that the act of affixing the proper indorsement on the paper is a duty to be performed by the officer, and with a failure of the officer to seasonably and properly indorse the paper the party delivering it cannot be prejudiced. He has done all that is required when he delivers the paper to the proper official. Phillips v. Beene's Adm'r, supra. The register and chancellor took this paper to be a "request" within the statute. By no sort of construction can the paper be read otherwise than as evincing the desire of complainant's solicitors of record that the cause be submitted in vacation. It so declares. It is true the paper does not follow the language of the statute in respect of a request to deliver the papers in the cause to the chancellor; but it is requested that the papers be sent to complainant's solicitors for submission in vacation, and the assurance is given that they would attend to the submission. We think it would be rather too narrow, in view of the object the statute intends to conserve, to require the request thereunder to pursue the statute's language. Whether the register sent the papers in the cause to the chancellor by one means or another cannot, we think, be important. That he might do so by hand, as well as by post or express, is clear. If so, he can certainly effect the purpose through solicitors in the cause. While we feel impelled to sustain the decree on this point of attack, it cannot be denied that the better practice under this statute (section 3164) would be to make the "request" provided more formal than was here done.

It is further objected that the decree is erroneous because without the consent of the respondent, a submission in vacation cannot be...