Partlow v. Partlow
Decision Date | 11 January 1945 |
Docket Number | 7 Div. 809. |
Citation | 20 So.2d 517,246 Ala. 259 |
Parties | PARTLOW v. PARTLOW. |
Court | Alabama Supreme Court |
Jas L. Carter, of Anniston, for appellant.
John D. Bibb, of Anniston, for appellee.
This appeal is from the final decree of the Circuit Court of Calhoun County, in Equity, entered on a bill of review reviewing and vacating for error apparent a decree of said court formerly entered in a divorce proceeding and expunging all of the proceedings in said divorce proceedings subsequent to the filing of the original bill and restoring the cause to the docket for further proceedings.
The defendant in the divorce proceeding and complainant in the bill of review was a nonresident of the state and the alleged error apparent on the record was the court proceeded to a final decree without acquiring jurisdiction of the person of the defendant.
The statute, Code 1940, Tit. 34, § 23, prescribing the 'More of proceeding in divorce suits,' provides that, * * *.' The record shows that although the bill in the divorce proceeding alleged that the defendant was a nonresident of the state, publication was not made as prescribed by the statute, nor was any affidavit filed as to such nonresidence until after the final decree of divorce was granted. Nor were the allegations of the bill as to such nonresidence of the defendant supported by affidavit as required by Equity Rule 5, subsection 2(b), Code 1940, Tit. 7 Appendix, authorizing generally the service of adult nonresident defendants by registered mail. But a copy of the bill with summons attached was forwarded to the address of defendant by the register by registered mail, with return receipt demanded, and received and filed.
In Martin v. Martin et al., 173 Ala. 106, 111, 55 So 632, 633, it was observed by Justice McClellan:
'The jurisdiction of courts of equity to dissolve the bonds of matrimony is purely statutory. Nelson on Div. §§ 10, 17, 18, 19; 1 Pom.Equity Jur. §§ 98, 112 (subd. 10); 14 Cyc. pp. 581, 582; 9 Am. & Eng.Ency. Law, p. 726. Accordingly, the power to grant divorce a vinculo is not of the general jurisdiction of courts of equity; but they are in that respect, courts of limited and special jurisdiction. 'Where a special authority, in derogation of the common law, is conferred by statute on a court of general jurisdiction, it becomes quoad hoc an inferior or limited court.' State v. M. & G. R. Co., 108 Ala. 29, 18 So. 801; Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903; Gunn v. Howell, 27 Ala. 663, 62 Am.Dec. 785.
This holding has been consistently followed and is in consonance with the weight of authority in this county. Crimm v. Crimm, 211 Ala. 13, 99 So. 301; Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820; Waters v. Waters, 200 Ala. 541, 76 So. 867.
'Divorce proceedings are not regarded as proceedings strictly in rem and process of some kind, either personal or substituted, must be served upon the...
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Vaughan v. Vaughan, 2 Div. 359
...mere exercise of jurisdiction, but must affirmatively appear from the record. Martin v. Martin, 173 Ala. 106, 55 So. 632; Partlow v. Partlow, 246 Ala. 259, 20 So.2d 517. But this court has held that on collateral attack when the record shows that the jurisdiction has been invoked by an appr......
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Odem v. McCormack
...that is, sworn to by the plaintiff, his agent or attorney. See Bell v. Bell, 245 Ala. 513, 17 So.2d 872. The case of Partlow v. Partlow, 246 Ala. 259, 20 So.2d 517, is not authority for the position taken by appellant on this point. The bill in that case was not supported by an affidavit of......
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Watts v. Town of Green Valley
...but was a special limited or statutory power being exercised by a court of limited jurisdiction. Ex parte Connor, supra; Partlow v. Partlow, 246 Ala. 259, 20 So.2d 517. Here, the judicial act of the probate court in deciding it had jurisdiction was an erroneous conclusion in view of the fac......
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Smith v. Smith, 7 Div. 835.
... ... 221] Adm'rs, 63 Ala. 398; Diston & Sons v ... Hood, 83 Ala. 331, 3 So. 746; Meyer v. Keith, 99 ... Ala. 519, 13 So. 500. See also Partlow v. Partlow, ... 246 Ala. 259, 20 So.2d 517 ... I am ... not able to agree with the majority that this 'short ... form' of notice meets ... ...