McDowell v. McDowell

• Decision Date: 08 May 1969
• Docket Number: 6 Div. 610
• Citation: 223 So.2d 277,284 Ala. 158
• Parties: Frank H. McDOWELL v. Dorothy B. McDOWELL.
• Court: Alabama Supreme Court

Page 277

223 So.2d 277

284 Ala. 158

Frank H. McDOWELL v. Dorothy B. McDOWELL.

6 Div. 610.

Supreme Court of Alabama.

May 8, 1969.

Rogers, Howard, Redden & Mills, Birmingham, for appellant.

Corretti, Newsom, Rogers & May, Birmingham, for appellee.

LAWSON, Justice.

This appeal is from a decree in a divorce suit which, among other relief, granted the wife an absolute divorce, gave her the custody of the minor son of the parties, awarded her the sum of $200 a month 'as alimony and support and maintenance for herself and minor child,' and which further decreed 'that the 230 shares of telephone stock shall be divided equally between the parties.'

The appellant's argued assignments of error raise four questions: the failure of the trial judge to sustain the husband's demurrer interposed to the wife's bill, which took the point that said bill failed to properly allege cruelty; the failure of proof even if properly alleged; the amount awarded by the trial court to the wife 'as alimony and support and maintenance for herself and minor child'; and the division of stock jointly owned by the parties.

Appellant's first assignment of error reads: 'The Court erred in overruling the Respondent's demurrer to the bill of complaint.' We take note of the fact that the demurrer was not refiled to the bill as amended on the date of trial so as to change the date on which the original complaint alleges that appellee committed actual violence on the person of appellee from January 21, 1967, to May 15, 1967. But since the said assignment of error is not directed to the bill as amended but 'to the bill of complaint,' we do not think the failure to refile the demurrer to the bill as amended precludes us from considering the first assignment of error. In Birmingham Railway, Light & Power Co. v. Fox, 174 Ala. 657, 669, 56 So. 1013, 1017, we said in part:

'We therefore hold that a demurrant or pleader cannot invoke a ruling on pleading as to a complaint to which said demurrer or plea is not interposed, and the court has no right to interpose them for him; but this is an entirely different proposition from a party's right to review a ruling on his plea or demurrer to the original complaint, and which was made before the amendment of same, and which was not reinterposed after the amendment. * * *'

Also see Southern Railway v. Hanby, 183 Ala. 255, 62 So. 871; Nunnally Co. v. Bromberg & Co., 217 Ala. 180, 115 So. 230; Crittenden v. Speake, 240 Ala. 133, 198 So. 137.

Although not necessary to a decision in this case, we would also like to call attention to the following language in Birmingham Railway, Light & Power Co. v. Fox, Supra:

'* * * We therefore hold that the amendment to counts 2 and 4 only changed the name of the motorman, and in no way materially affected or obviated the defects attempted to be reached by the demurrer, and in this respect the amendment wrought no change in said counts, and the defendant did not waive rulings, on its demurrers to the said counts, by failing to refile its said demurrers after the amendment.' (174 Ala. 672, 56 So. 1018.)

The statutes conferring jurisdiction on courts of equity to divorce persons from the bonds of matrimony limit the jurisdiction by prescribing the causes or grounds upon which divorces may be granted prescribing the procedure and requiring that: '* * * the cause for which the divorce is sought must be alleged in the bill, * * *'

One of the jurisdictional facts essential to the validity of the proceedings is that a statutory cause or ground for divorce must be alleged in the bill and failing in this, the proceedings are Coram non judice and therefore wholly void. Tillery v. Tillery, 217 Ala. 142, 115 So. 27, and cases cited.

As here pertinent, § 22, Title 34, Code 1940, as amended, reads:

'In favor of either party to the marriage when the other has committed actual violence on his or her person, attended with danger to life or health, or when from his or her conduct there is reasonable...