Ingalls v. Ingalls, 6 Div. 370
| Decision Date | 02 April 1953 |
| Docket Number | 6 Div. 370 |
| Citation | 259 Ala. 80,65 So.2d 199 |
| Parties | INGALLS v. INGALLS. |
| Court | Alabama Supreme Court |
Chas. W. Greer, Birmingham, for appellant.
Beddow & Jones, Birmingham, for appellee.
Appellant advises us that he has attempted to appeal from a decree dated October 23, 1951, in which the circuit court in equity decreed for the payment to complainant by the respondent of the sum of $15,000 for complainant's solicitors of record for services rendered in a supplementary proceeding begun by respondent to modify a decree dated June 27, 1947, whereby a divorce was granted at the suit of complainant and provision made for the custody and support of the children by the respondent.
A petition was filed in the trial court on November 1, 1951, to set aside the decree of October 23, 1951. The decree is there referred to as being dated September 23, 1951. But we think there is enough internal evidence to show the date was an error and intended to be that of October 23, 1951. This petition was set down for hearing on November 16, 1951. There was a decree rendered by the court dated December 7, 1951, denying said petition or motion. An appeal bond was filed and approved on behalf of respondent on December 10, 1951. It recites that the appeal is from a decree rendered on the 7th day of December, 1951.
Appellee has made a motion to dismiss the appeal because the decree of December December 7, 1951 is not appealable. Certain proceedings have been had with reference to a contention that the date of December 7, 1951, was inserted by mistake in the appeal bond, and that it was intended to have been the decree dated October 23, 1951. We need not refer again to that proceeding, since it did not serve the purpose sought. So far as here involved, the appeal is in terms and effect from the decree of December 7, 1951.
We will here refer to some of the proceedings had in the trial court leading up to the time of the appeal. On November 7, 1950, Robert I. Ingalls, Jr. (here called the respondent) filed in the circuit court, in equity, of Jefferson County, a petition to modify a former decree of that court rendered on June 27, 1947, whereby his wife Eleanor (here called the complainant) obtained a divorce, and in which decree the custody of the children was awarded to the respondent for nine months and to complainant for three months. This decree made provision for payment to complainant for the support of the children while in her custody. The petition sought a modification in both respects, and is that referred to first above. On December 4, 1950, Mrs. Ingalls filed a cross bill or cross petition also seeking a modification of that decree.
On August 29, 1951, a petition was filed on behalf of Mrs. Ingalls praying for an order requiring Robert I. Ingalls, Jr., to pay a reasonable solicitors' fee incurred in respect to the two petitions to modify. This latter petition was amended on September 12, 1951. After much procedure on the petitions to modify, both petitioner and cross petitioner made it known that they wished to dismiss both petitions. The petitions were dismissed with a reservation in the decree of consideration and action upon the petition for attorneys' fee to be allowed Mrs. Ingalls. Consideration of that petition was heard and action had upon it on October 23, 1951.
Appellant, in brief filed November 25, 1952, states that the petition 'was in the nature...
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Ware v. Timmons
...v. Trent, 698 So.2d 1094, 1095 (Ala.1997); Springer v. Jefferson County, 595 So.2d 1381, 1383 (Ala. 1992); and Ingalls v. Ingalls, 259 Ala. 80, 81, 65 So.2d 199, 200 (1953). A party's explicit admissions in an appellate brief are binding on the party. Best Plant Food Prods., Inc. v. Cagle, ......
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