Hayes v. Hayes
| Decision Date | 15 April 1915 |
| Docket Number | 782 |
| Citation | 192 Ala. 280,68 So. 351 |
| Parties | HAYES v. HAYES. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Marshall County; W.H. Simpson Chancellor.
Suit by Maggie Hayes against John Arthur Hayes, in which a decree of divorce was awarded to plaintiff. From an order modifying the decree as to the custody of a child of the parties rendered in vacation on petition for modification, defendant appeals. Dismissed.
Street & Isbell, of Guntersville, for appellant.
John A Lusk & Son, of Guntersville, for appellee.
In the chancery court of Marshall county on November 14, 1913, a decree of divorce was awarded appellee, Maggie Hayes, against appellant, John Arthur Hayes, on the ground of "actual violence upon her person," under provision of section 3795 of the Code, and in the decree the appellant was awarded the custody of a child named in the bill "until the further order of the court." In the same court on May 21, 1914, a decree or order was entered "by consent of the parties and solicitors in open court," providing for periodical visits by the child to the mother, and requiring appellant to permit such visits, etc., and the order expressly stated that it was "subject to change or modification by the court as it may deem proper at any time in the future." On June 27, 1914, appellee filed her petition in said court, setting up the remarriage of appellant and that the child was being denied the association and attention of the mother, and being totally estranged and her affection alienated from the petitioner, her mother, and that appellant refused to permit the child to visit petitioner, as was expressly provided in the former order of the court. The petitioner prayed a modification of the former order or decree of the court in respect to the custody of said child to the effect that petitioner should be given control of said child, that due notice issue to said John Arthur Hayes, and that a writ be issued for Hayes to show cause why he should not be committed for contempt. The petition appears to have been set down for a hearing on July 10, 1914, and a regular summons appears to have been issued and served.
On July 10th the chancellor entered an order modifying the former decree in respect to the custody of the child, and providing that petitioner, Maggie Hayes, should have the care and custody of the said child till further orders of the court. This order shows upon its face that it was rendered in vacation, on petition for modification of the decree rendered on May 21, 1914, and also upon the rules of the court to show cause why he should not be committed for contempt, and the order recites:
"It appearing to the court that the hearing of said petition was set down for this day, and that due and legal notice of the time and place of said hearing was served on the defendant, and the defendant making no defense of said petition and not appearing at this time," etc.
From this decree or order of July 10, 1914, the said John Arthur Hayes prosecutes this appeal, and the only assignment of error relates to the rendition of this decree.
It is insisted by counsel for appellant that the decree or order is a final one, coming within the provisions of section 2837 of the Code of 1907, and that it was rendered in vacation, without the consent of the parties, without any decree pro confesso; and in this connection we are cited by counsel to the case of Adams v. Wright, 129 Ala. 305, 30 So. 574. The case cited, however, would support the proposition that a decree rendered in vacation, without consent of the parties, or without coming within the provisions of any statute or rule governing the same, would be void and would not support an appeal, and that consequently the appeal would have to be dismissed. Wortheimer v. Ridgeway, 157 Ala. 398, 47 So. 569; Gartman v. Lightner, 160 Ala. 202, 49 So. 412. We do not understand the case of Johnson v. Johnson, 182 Ala. 376, 62 So. 706, as affecting the principle declared in these cases, and it does not affect the question here involved.
The decree here appealed from shows on its face that it was rendered in vacation, without any appearance or consent, and such is the insistence of counsel. It follows, therefore, that the argument of counsel for appellant that the decree of July 10, 1914, was a final decree, and his further contention that it was rendered in vacation, without consent of parties and without the authority of statute or rule permitting the same, would logically lead to a dismissal of his appeal.
"The Supreme Court is without jurisdiction to entertain an appeal from orders of the lower court in a pending suit in chancery, unless such decree or order is either a final decree or is one of the certain interlocutory orders provided by statute." McKleroy v. Gadsden L. & I. Co., 126 Ala. 184, first headnote, 28 So. 660; Ex parte Jonas, 64 So. 960.
It is not insisted, and it could not be successfully done, that the decree of July 10th was such an interlocutory order or decree named in the statute from which an appeal may be prosecuted. From either viewpoint, therefore, it is clearly seen that the appeal must be dismissed.
While this might dispose of the cause, and a further discussion may be unnecessary, yet we wish to make it clear that we do not intend to indicate by what is here said that the decree of July 10th was in any sense such a final decree as would support an appeal. On the contrary, we entertain the view that it was a decretal order of an interlocutory nature, which the chancellor was authorized to enter, and from which the statute has authorized no appeal.
In Pearce v. Pearce, 136 Ala. 188, 33 So. 883, speaking somewhat to the question, it was said:
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Ex parte Kelly
...counsel agree that appeal will not be from a void decree or judgment. Gartman v. Lightner, 160 Ala. 202, 49 So. 412; Hayes v. Hayes, 192 Ala. 280, 68 So. 351. appeal would lie from such final decree in which the court had jurisdiction of the parties and the subject-matter, that course shoul......
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Gallant v. Gallant
...See 31 Ala. at 482 (citing, among other authorities, Codd v. Codd, 2 Johns Ch. 141 (N.Y.Ch.1816) ); see also Hayes v. Hayes, 192 Ala. 280, 284, 68 So. 351, 352 (1915) ("The authorities also recognize the power of the chancery court to modify any order or decree concerning the custody of the......
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Thorne v. Thorne
...to be heard. An equity court has wide judicial discretion in proceedings involving the welfare of children. In Hayes v. Hayes, 192 Ala. 280, 68 So. 351 (1915), it was said that when an equity court has acquired jurisdiction of a child as to the child's custody and control, the child becomes......
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Melton v. Melton
...* * When such jurisdiction is validly invoked, the infant becomes the ward of that court. Rivers v. Durr, 46 Ala. 418, 422; Hayes v. Hayes, 192 Ala. 280, 284, 285, 68 South. 351, the declaration in the last cited case being that the jurisdiction thus obtained is, in a sense, continuous. Thi......