Hudson v. Hudson

• Decision Date: 05 February 1920
• Docket Number: 7 Div. 40
• Citation: 204 Ala. 75,85 So. 282
• Parties: HUDSON v. HUDSON.
• Court: Alabama Supreme Court

85 So. 282

204 Ala. 75

HUDSON v. HUDSON.

7 Div. 40

Supreme Court of Alabama

February 5, 1920

Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.

Bill for divorce by Mary I. Hudson against W.K. Hudson. Decree for complainant, and respondent appeals. Affirmed.

Riddle & Riddle, of Talladega, and Riddle & Hardegree, of Ashland for appellant.

M.M Smith, of Pell City, and R.G. Rowland, of Ashland, for appellee.

SOMERVILLE J.

A bill for divorce on the ground of cruelty, which charges that about two years before its filing, the respondent cursed and abused the complainant with profane words, struck her a severe blow on the head with a chair; that he frequently beat her with his hands, choked her, and threatened to kill her; that afterwards (in 1918) he again struck and choked her; that such violence was attended with danger to complainant's life or health, of which she had reasonable apprehensions if she continued to live with him; and that therefore "on or about the ______ day of 1918, she ceased to live with him as his said wife, and has in no way since condoned his said treatment of her"--sufficiently charges cruelty and a discontinuance of marital cohabitation, and is not subject to demurrer in those respects.

If there has been such a resumption of cohabitation as to indicate a condonation of the offenses charged, since the alleged separation, that is defensive matter which should be presented by answer.

If it be conceded that the allegations of the bill charging cruel abuse of the minor children are irrelevant and out of place, it is certain that this is no ground of demurrer to the bill. Parsons v. Johnson, 84 Ala. 254, 4 So. 385.

If, on the other hand, these allegations present an appropriate issue in the case, namely, the fitness vel non of respondent to retain the custody of the minor children, which may be adjudicated by the court as a part of the final decree, with or without such allegations, the apt grounds of demurrer should have been addressed to that aspect of the bill. This is not accomplished by demurring "to the complaint, and each count thereof, separately and severally," since a bill of complaint does not consist of counts, and such a demurrer, as to any specific aspect of the bill, is bad in form, and cannot be sustained.

Where a bill for divorce is filed in the chancery district in which the respondent is alleged to reside, it is, of course, not necessary to show the county or district where the separation occurred. Code 1907, § 3801.

The demurrer to the bill was properly overruled, so far as its merits are concerned.

It is insisted, however, that the decree should be reversed and the cause remanded for hearing upon the demurrer, because the decree on demurrer was rendered at chambers and it does not appear that respondent had notice, as required by Ch. Pr. rule 74 (Code 1907, vol. 2, p. 1550), of the time and place of the hearing.

Rule 74 provides that a demurrer may be set down by either party for hearing in vacation, upon 10 days' notice to the adverse party of the time and place thereof. This rule was framed under the old dispensation, when the terms of chancery court consisted of short periods, fixed by statute, during which causes were peremptorily called for hearing; and at all other times the court was in vacation. Under the new dispensation (Acts 1915, p. 279), the...