Kelley v. Kelley, 8 Div. 588

• Decision Date: 03 April 1952
• Docket Number: 8 Div. 588
• Citation: Kelley v. Kelley, 257 Ala. 173, 57 So.2d 873 (Ala. 1952)
• Parties: KELLEY v. KELLEY.
• Court: Alabama Supreme Court

Page 873

57 So.2d 873

257 Ala. 173

KELLEY v. KELLEY.

8 Div. 588.

Supreme Court of Alabama.

April 3, 1952.

Arthur D. Shores and Peter A. Hall, Birmingham, for appellant.

Griffin, Ford, Caldwell & Ford, Huntsville, for appellee.

LIVINGSTON, Chief Justice.

On submission here, the appellee moved for the dismissal of the appeal, and for the allowance of attorney's fees for representing the appellee on appeal to this court. The appeal must be dismissed.

The record discloses that appellee filed her suit for divorce in the Circuit Court, in Equity, of Madison County, Alabama, alleging cruelty. The bill alleged the existence of a common-law marriage between the parties and sought its dissolution, custody of the two minor children of the union, alimony and solicitor's fees. The appellant answered, denying the existence of the alleged marriage relationship and also the cruelty alleged in the bill. By cross-bill he alleged cruelty on the part of the appellee, and further, that he had executed and delivered to the appellee a certain deed conveying to her certain described real estate. Appellant, in the cross-bill, prayed that in the event the court found that the parties were in fact married, that he, appellant, be granted a divorce on the ground of cruelty: that he be granted the custody and control of the two minor children of the parties; and that the deed referred to be set aside, canceled and held for naught.

On the 12th day of April, 1950, the court below rendered a decree granting the appellee, the wife, a divorce a mensa et thoro, custody of the children, alimony and solicitor's fees. The decree also denied the relief prayed for in appellant's cross-bill, except that the deed by appellant conveying certain lands to appellee was set aside and held for naught.

The appeal to this court was perfected on October 7, 1950. It is apparent of course that the instant appeal was taken after 60 days, but within 6 months of the rendition of the final decree. Section 788, Title 7, Code 1940, provides that appeals under Chapter 16, Code 1940, from final decrees must be perfected within 6 months from the rendition of such decrees, except in such cases as a different time is prescribed. Section 789, Chapter 16, Title 7, Code 1940, provides: 'Appeals from decrees of divorce.--Appeals from decrees of divorce must be taken within sixty days from the date upon which such decree of divorce was rendered.'

We do not think that the fact that the appellant filed a cross-...