Lucas v. Lucas
| Decision Date | 20 October 1949 |
| Docket Number | 2 Div. 258. |
| Citation | 42 So.2d 457,252 Ala. 626 |
| Parties | LUCAS v. LUCAS. |
| Court | Alabama Supreme Court |
Lange, Simpson, Robinson & Somerville, of Birmingham, for appellant.
Geo P. White, of Centerville, for appellee.
The appeal is from a decree overruling demurrer to a bill in equity.
The bill was filed by Mrs. Mary Belle Lucas, as the widow of Robert D. Lucas, against the heirs at law and next of kin of Robert D. Lucas, deceased.
The purpose of the bill was to have the circuit court of Bibb County, in equity, cancel a divorce decree rendered by that court on January 8, 1943, in a proceeding instituted by the said Robert D. Lucas, on the ground of fraud in its procurement. That the averments of the bill in this case make out a clear case of actual fraud in the procurement or concoction of the said divorce decree, upon the court and upon the complainant, is not questioned on this appeal.
There were many grounds of demurrer, but, under our uniform rule we will consider only those grounds which counsel for appellant have thought of sufficient merit to argue here. Those grounds of demurrer not argued are waived. Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107.
Clay M. Lucas, the appellant here, one of the respondents below concedes that under the decision of this court in the case of Fox et al. v. Fox, 235 Ala. 338, 179 So. 237, a decree of divorce may be vacated in a proceeding by the widow for fraud in the procurement of the divorce decree where property rights are involved.
Appellant insists, however, that the allegations of the bill in this case with respect to property rights are not sufficiently definite and that those grounds of his demurrer taking the point should have been sustained.
In this connection the bill as amended alleges:
'Your Complainant would further show that she has reason to believe that the said Robert D. Lucas, deceased, was the owner of certain property at the time of his death, but after diligent effort Your Complainant has been unable to ascertain the exact location, nature or amount of said property and further has been unable to determine who is the legal representative of said Robert D. Lucas Estate.
'Your Complainant would further show that as the lawful widow of the said Robert D. Lucas, deceased, she would be entitled to a cause of action under the Workmen's Compensation Law of Alabama.
'Your Complainant would further show that as the lawful widow of the said Robert D. Lucas, deceased, she would be entitled to a cause of action under the Social Security Laws of the United States.'
The decisions are far from being unanimous, but it appears that the weight of authority in this country in regard to the power of a court to set aside a divorce decree after the death of one of the parties, in a proceeding instituted by the survivor, is that such a power exists if property rights of the survivor are affected by the divorce decree, but that such power does not exist where the only object which could be attained by vacating the decree would be sentimental in its nature. 157 A.L.R. 53. We in effect followed the majority rule in the case of Fox et al. v. Fox, supra.
We are of the opinion that the averments of the bill heretofore set out are sufficient to show that the complainant in this case is not seeking to have the divorce decree vacated for sentimental reasons, but in order that she may proceed to assert her rights in property, which rights are dependent upon the invalidity of the decree of divorce. Connelly...
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Anderson v. Dyer
...a fraud--Davis v. Carp. 258 Mo. 686, 698(2), 167 S.W. 1042, 1046(3).6 Unger v. Unger, D.C.Mun.App., 174 A.2d 84, 85(1); Lucas v. Lucas, 252 Ala. 626, 42 So.2d 457, 458(2); Stitt v. Sunderman, 247 Iowa 1132, 77 N.W.2d 629, 631(1); Higgins v. Higgins, 204 Iowa 1312, 216 N.W. 693, 694(2); Gato......
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Cook v. Whitehead
...grounds of demurrer not argued are treated as waived. Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107, and cases cited; Lucas v. Lucas, 252 Ala. 626, 42 So.2d 457. Our review, therefore, is limited to the consideration of the first and second grounds of the demurrer, which go to the bill as......
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Lucas v. Lucas, 2 Div. 302
...case. In the first appeal, this court affirmed the decree of the trial court overruling demurrer to the bill of complaint. Lucas v. Lucas, 252 Ala. 626, 42 So.2d 457. The present appeal is from the final decree which granted the relief prayed for and taxed the costs of the proceeding, inclu......
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Vaughan v. Vaughan
...a suit after the death of the husband, and that whether it was begun before he died. Other cases supporting the view are: Lucas v. Lucas, 252 Ala. 626, 42 So.2d 457; Cox v. Dodd, 242 Ala. 37, 4 So.2d 736; Fox v. Fox, 235 Ala. 338, 179 So. 237; 17 Am.Jur. 378, 379, § We have therefore a just......