Hooke v. Hooke

• Decision Date: 31 January 1946
• Docket Number: 5 Div. 407.
• Citation: 247 Ala. 450,25 So.2d 33
• Parties: HOOKE v. HOOKE.
• Court: Alabama Supreme Court

25 So.2d 33

247 Ala. 450

HOOKE v. HOOKE.

5 Div. 407.

Supreme Court of Alabama

January 31, 1946

Rehearing Denied March 7, 1946.

J. B. Atkinson, of Clanton, for appellant.

U G. Jones, of Wetumpka, for appellee.

LAWSON Justice.

This is an appeal from a decree of the Circuit Court of Elmore County, in Equity, overruling demurrers to a bill in equity.

On March 30, 1944, the appellant, Edward N. Hooke, secured a decree of divorce from his wife, Vivian Hooke, appellee, in the Circuit Court of Elmore County, Alabama, in Equity, on the ground of voluntary abandonment. In his bill for divorce filed on June 10, 1943, he averred that they were married on May 3, 1938, in New Orleans, Louisiana; that his wife appellee, voluntarily abandoned him, without fault on his part, on or about May 10, 1940, which was more than two years before the date of the filing of the bill, and had voluntarily remained away from him and that they have not lived together as man and wife since that date; that he was a bona fide resident citizen of Elmore County, Alabama, and had been such for more than twelve months next preceding the filing of his bill for divorce; that his wife was a nonresident of the State of Alabama; 'that her last place of residence was New Orleans in the State of Louisiana, but plaintiff avers that he has made diligent effort to locate her post office and street address within the last past twelve months and has been unable to ascertain the same.' Personal service on the wife was not obtained, and publication was made in the Wetumpka Herald, a newspaper published in Wetumpka, Elmore County, Alabama. The affidavit of nonresidence contains the following averment, 'that Vivian Hooke, the respondent in the above stated cause is a non-resident of the State of Alabama, and that her place of residence is unknown, and that it cannot be ascertained after reasonable effort.' The respondent, Vivian Hooke, did not appear to the action either in person or by attorney and the cause was submitted for final decree, on the bill, decree pro confesso, on publication and proof.

Appellee, on January 26, 1945, filed her bill in equity, in the same county and in the same court in which the divorce decree was rendered, for the purpose of having that decree set aside and declared null and void. Service was had on appellant by registered mail. The bill, as amended, contains the following averments, in substance: That appellee is a resident citizen of New Orleans, Louisiana; that the appellant is a nonresident of the State of Alabama, being a bona fide resident of the State of Georgia, and resides in the City of Savannah; that they were married on May 3, 1938, and lived together thereafter as husband and wife until, to-wit, June 25, 1940, on which date appellant deserted her and that they have not since lived together as man and wife; that the allegations in appellant's bill for divorce, filed on June 10, 1943, that he was bona fide resident citizen of Elmore County, Alabama, at the time it was filed, and had been for more than twelve months prior thereto were false, were known by appellant to have been false when made, and were made for the fraudulent purpose of obtaining jurisdiction of the trial court; that at the time said bill of divorce was filed by appellant he was a resident citizen of the State of Georgia but was at the time serving a sentence in the penitentiary of the State of Alabama and was incarcerated in Draper Prison in Elmore County, but was not a bona fide resident citizen of that county; that the allegation in the bill for divorce filed by appellant that he had made diligent effort to locate her (appellee's) post office and street address, but had been unable to ascertain same, was false and fraudulent and was known by appellant to have been false and fraudulent at the time it was made, and that it was made for the false and fraudulent purpose of acquiring jurisdiction of appellee and of the subject matter; that jurisdiction of appellee, respondent in the divorce proceedings, was attempted to be acquired by publication in a newspaper and by posting a copy of the order of publication at the Court-House door of Elmore County but that she never received a copy of the said order of publication, or a copy of the bill of complaint or summons to answer the said complaint; that she had no notice of the filing of the bill of complaint or of any decree rendered thereon for more than six months after the final decree was entered and had no opportunity to defend same; that appellant, on the date that he filed his divorce suit, also filed an affidavit of nonresidence, and that said affidavit failed to state that the post office address of appellee was not known and was silent as to her post office address; that at the time the said bill for divorce was filed her resident post office address was 613 Louisa Street, New Orleans, Louisiana, which fact appellant then knew, or if not actually known, could have been ascertained by him upon reasonable effort, but that he made no reasonable effort to ascertain the same, if he did not actually know it; that the allegation in the said bill for divorce that appellee, on or about the 10th day of May, 1940, voluntarily abandoned appellant's bed and board without fault on his part and that she has voluntarily remained away from him since that time, was false, and was known by appellant to have been false at the time it was made, and was made for the fraudulent purpose of setting out or submitting to the Circuit Court of Elmore County, in Equity, a ground or cause of action upon which to seek a divorce; that she has never voluntarily abandoned the bed and board of said Edward N. Hooke at any time and had not abandoned his bed and board for more than two years preceding the filing of the said bill for divorce; that the testimony of her husband (appellant) in the divorce case, that he was a bona fide resident citizen of Elmore County, Alabama, and that appellee had voluntarily abandoned him, without fault on his part, and had voluntarily remained away from him was false and fraudulent and was made for the false and fraudulent purpose of obtaining a divorce decree from appellee; that on the 30th day of March, 1944, the Circuit Court of Elmore County, Alabama, in Equity, entered a decree granting appellant a divorce from appellee. Appellant's bill for divorce, his affidavit of nonresidence, the register's order of publication and the divorce decree were all made exhibits to appellee's bill, as amended.

The nature of a bill of this character must be determined by its averments, its purpose, and its substance, rather than the names given it by the parties. The scheme of this bill is to impeach for fraud the final decree rendered in the divorce proceedings; to declare the decree void for fraud shown by extrinsic circumstances relating to its procurement. Such a bill is not a bill of review but an original bill in the nature of a bill of review. Graves v. Brittingham, 209 Ala. 147, 95 So. 542. The allegations in the bill relating to the affidavit of nonresidence and the order of publication seem to be set out for the sole purpose of showing that appellee's averments that she had no actual notice of the divorce proceedings are not contradicted by the record.

However, if the bill sought relief within the purview of a bill of review as well as relief which may be granted by a bill in the nature of a bill of review, it would not be bad for multifariousness. Appellant's contention in this respect is set at rest by the Code of 1907, Section 3095 (Rule 15, Equity Practice, Code 1940, Title 7, Appendix page 1055), which changed the rule as stated in Gordon's Adm'r v. Ross and Wife, 63 Ala. 363.

In Smith v. Young, 173 Ala. 190, 55 So. 425, it was held that Section 3095, Code 1907, supra, had the effect of permitting a bill to be filed, which seeks alternative reliefs, although inconsistent, if they be founded upon the same transaction and grow out of the same subject matter and are contested between the same parties. In Jones v. Henderson, 228 Ala. 273, 153 So. 214, 218, it is said: 'The character of the bill is determined by its substantive averments and the relief sought. There is no reason why it may not at the same time be one to accomplish such relief as is not properly within the purview of a bill of review, and also to have that relief which may be granted only in a bill thus styled.' To like effect is the case of Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820.

The fact that the opinion in the case of Casey v. Sacks, 223 Ala. 147, 134 So. 851, contains a quotation from the case of Gordon's Adm'r v. Ross and Wife, supra, is not to be construed as approval by this court of that part of the quoted matter holding that a bill which seeks relief within the purview of a bill of review as well as relief afforded by a bill in the nature of a bill of review cannot be maintained. The only purpose of the quotation was to point out that the objects and effect of a bill of review and a bill in the nature of a bill of review are essentially different. That this was the purpose of the quotation is clearly shown by the paragraph which immediately precedes it.

Appellee's bill was properly filed in the...