Oliver v. Oliver, 4 Div. 271.

• Decision Date: 08 April 1943
• Docket Number: 4 Div. 271.
• Citation: 244 Ala. 234,12 So.2d 852
• Parties: OLIVER v. OLIVER.
• Court: Alabama Supreme Court

12 So.2d 852

244 Ala. 234

OLIVER v. OLIVER.

4 Div. 271.

Supreme Court of Alabama

April 8, 1943

A. L. Patterson, of Phenix City, for appellant.

No attorney marked for appellee.

GARDNER Chief Justice.

The bill was by the wife against the husband seeking divorce on the ground of cruelty and containing averments in compliance with the statute. Title 34, § 22, Code of 1940; Sams v Sams, 242 Ala. 240, 5 So.2d 774; Ratcliff v Ratcliff, 209 Ala. 377, 96 So. 422.

Complainant offered testimony of herself and two witnesses in substantiation of the cruelty charge, disclosing actual violence by the husband upon the person of the wife attended with danger to her life or health. Authorities supra. It is clear the proof justified the decree of divorce, and this is not questioned by the chancellor in his opinion which accompanies the decree. But complainant was denied relief and her bill dismissed upon the following theory.

In complainant's affidavit as to defendant's nonresidence, it was stated that Robert Oliver, the defendant, "is a non resident of the State of Alabama that she does not know his whereabouts, and he has been absent from the State of Alabama for more than six months before the making of this affidavit, and that he does not have any address or place of residence in the State of Alabama, and that he is a necessary party to said suit, and that she has made a diligent search and inquiry in an effort to locate him but has been unable to do so, and that it is necessary to serve him by publication as required by law in such cases and that he is over 21 years of age, and that he is not a member of the armed forces of the United States, being physically disabled for military service." The affidavit was in compliance with Equity Rule 6, Title 7, page 1044, Code of 1940 Appendix and due publication and posting was had as specified by this rule. In due time decree pro confesso was entered by the register in accordance with the provision of Equity Rule 32, Title 7, page 1076, Code of 1940 Appendix. Relief was denied complainant for the reason, as stated by the chancellor, that there was inconsistency in complainant's statement that defendant was not a member of the armed forces "and in the same breath that she does not know where he is." The opinion concludes: "When she states as a fact that the Respondent does not belong to the Army and then shows that she does not know where he is, she offers unsatisfactory and contradictory statements that do not satisfy this Court that she is entitled to the relief that she seeks."

The court had in mind Section 200 of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1180, 50 U.S.C.A. Appendix, § 520, which reads as follows:

"(1) In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act.

"(2) Any person who shall make or use an affidavit required under this section, knowing it to be false, shall be guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by fine not to exceed $1,000, or both.

"(3) In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him; and in such case a like bond may be required and an order made to protect the rights of such person. But no attorney appointed under this Act to protect a person in military service shall have power to waive any right of the person for whom he is appointed or bind him by his acts.

"(4) If any judgment shall be rendered in any action or...