Lee v. Lee, 4 Div. 328
| Decision Date | 14 November 1968 |
| Docket Number | 4 Div. 328 |
| Citation | 215 So.2d 718,283 Ala. 275 |
| Parties | W. Max LEE v. Sara M. LEE. |
| Court | Alabama Supreme Court |
Jos P. Hughes, Geneva, for appellant.
Kelly & Knowles, Geneva, for appellee.
Appellant, W. Max Lee (complainant below) filed a bill of complaint in the circuit court of Geneva County, in equity, on May 31, 1967, seeking a divorce from appellee, Sara M. Lee (respondent below), on the ground of voluntary abandonment.
On June 26, 1967, respondent (appellee) interposed demurrer to the bill of complaint, and on July 14, 1967, the demurrer was overruled.
Respondent (appellee) next filed an answer and cross-bill on August 16, 1967, in which she prayed for a divorce from the complainant (appellant) on the ground of voluntary abandonment and other relief.
On October 2, 1967, complainant and cross-respondent (appellant) filed a motion to strike certain portions of the answer and cross-bill, among which that portion pertaining to the awarding to respondent and cross-complainant (appellee) 'two gas heaters and gas tank presently in the possession of the respondent and cross-complainant at the home of her mother in Noma, Florida.'
The court entered an order on November 15, 1967, granting complainant and cross-respondent's (appellant's) motion to strike certain portions of the respondent and cross-complainant's cross-bill, including the above referred to 'two gas heaters and gas tank.'
The trial court sustained the demurrer filed by complainant to the cross-bill on November 15, 1967.
On December 15, 1967, respondent and cross-complainant (appellee) filed her amended cross-bill, and on January 26, 1968, complainant (appellant) filed an answer thereto.
No further pleadings were filed in the cause.
Submission was had on complainant's (appellant's) bill of complaint, respondent's (appellee's) answer and cross-bill, complainant's answer to the cross-bill, and on oral testimony taken in open court. The trial court entered a decree on March 5, 1968, granting a divorce to Sara M. Lee (appellee) on grounds of voluntary abandonment, and ordering complainant (appellant) to pay to respondent (appellee) alimony in the amount of $100 per month. In addition, appellee was awarded 'two gas heaters and gas tank,' and certain other personal effects and relief, not related to this appeal.
Appellant bases his appeal on two primary contentions. First, appellant alleges the decree recites that the cause was submitted on complainant's bill of complaint, respondent's answer and cross-bill, complainant's answer to the cross-bill, and on oral testimony taken in open court. But, the appellant claims that the record discloses that the cause was actually submitted on complainant's bill of complaint, respondent's answer and respondent's Amended cross-bill, complainant's answer to the Amended cross-bill, and on oral testimony.
Appellant insists that the lower court mistakenly based its decree on a cross-bill on which a motion and demurrer had been made and sustained. We do not think this point is well taken, because the trial court may have called the Amended cross-bill, a cross-bill, when, as a matter of fact, after a demurrer to the original cross-bill, was sustained, the Amended cross-bill became the cross-bill, regardless of what it may have been termed. Therefore, it is reasonable to conclude that the trial court had, as a basis for its decree, the Amended cross-bill, the only cross-bill in existence at that time since the demurrer had been sustained to the first cross-bill.
We do not think, as to the first contention raised by appellant, that because the trial court may have called the Amended cross-bill, a cross-bill, has any significance. As we earlier stated, it was the only cross-bill before the court at the time of submission. Therefore, we cannot assume that the court ignored the Amended cross-bill that was before the court on submission, and based its decree on the original cross-bill, which was not before the court, for the fact that a demurrer thereto had been sustained, and certain aspects of the original cross-bill had been stricken on motion.
By analogy, under the theory that a correct decision will not be disturbed because the court gave a wrong or incorrect reason therefor, we think, is authority for the fact that, even though the court may not have given the correct technical name...
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