Fox v. Fox, 7 Div. 488

• Decision Date: 17 February 1938
• Docket Number: 7 Div. 488
• Citation: Fox v. Fox, 235 Ala. 338, 179 So. 237 (Ala. 1938)
• Parties: FOX et al. v. FOX.
• Court: Alabama Supreme Court

179 So. 237

235 Ala. 338

FOX et al. v. FOX.

7 Div. 488

Supreme Court of Alabama

February 17, 1938

Appeal from Circuit Court, DeKalb County; A.E. Hawkins, Judge.

Bill in equity by Cora Fox against R.W. Fox, individually and as administrator of the estate of J.M. Fox, deceased, and others, for removal of administration from probate court to circuit court in equity, to have distributive share of estate, dower, and exemptions allotted, and cancellation of a decree of divorce.From a decree overruling a demurrer to the bill, respondents appeal.

Affirmed.

C.A Wolfes, of Fort Payne, for appellants.

Haralson & Crawford, of Fort Payne, for appellee.

GARDNER Justice.

Complainant files this bill as the widow of J.M. Fox, deceased, to obtain her distributive share of the estate of said decedent, the administration of which is now pending in the probate court of DeKalb county, and which administration is sought to be removed into the equity court.

Decedent's property is located in DeKalb county, whre the defendant administrator and a number of the defendant heirs of J.M. Fox reside.

But the bill discloses defendants deny she is the widow of J.M. Fox deceased, because of a divorce decree rendered in the circuit court, in equity, of Etowah county, on a bill filed by J.M Fox against Cora Fox, this complainant.And, in order to remove this impediment to her right to distribution in the estate of said decedent, the bill seeks a cancellation of said divorce decree on the ground of fraud in its procurement.

That the averments in paragraphs 4, 5, and 6 of the bill make out a clear case of actual fraud in the procurement or concoction of the decree, both upon the court and upon the complainant, is not here questioned.De Soto Coal, Mining & Development Co. v. Hill,188 Ala. 667, 65 So. 988;McDonald v. Pearson,114 Ala. 630, 21 So. 534.

And these averments likewise acquit this complainant of any negligence on her part in reference thereto (Leath v. Lister,233 Ala. 595, 173 So. 59), or of any imputation of undue delay in assertion of her rights (Wilkerson v. Wilkerson,230 Ala. 567, 161 So. 820).

But defendants insist that, for the cancellation of the decree, complainant must proceed in the court in Etowah county, where the decree was rendered.

Upon that question the courts are divided.15 R.C.L. 727; 34 Corpus Juris 484.This court, however, in its early history established the rule that the bill may be filed in the county where defendant resides, though that was not the county in which was rendered the judgment sought to be enjoined.And this appears to have been assumed by all parties as the still existing rule in Wilkerson v. Wilkerson,230 Ala 567, 161 So. 820, where no question was raised touching the matter of venue.There the bill was filed in Jefferson county, and the decree of divorce sought to be canceled for fraud was rendered in the county...