Puckett v. Puckett

• Decision Date: 21 November 1911
• Citation: 56 So. 585,174 Ala. 315
• Parties: PUCKETT ET AL. v. PUCKETT.
• Court: Alabama Supreme Court

56 So. 585

174 Ala. 315

PUCKETT ET AL. v. PUCKETT.

Supreme Court of Alabama

November 21, 1911

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Bill for divorce and alimony by Anna B. Puckett against Leonard R Puckett and others. From a decree for complainant, defendants appeal. Reversed and remanded.

Kyle &amp Hutson, for appellants.

Tidwell & Sample, for appellee.

MAYFIELD J.

This bill is for divorce and alimony. It was filed in the Morgan county law and equity court. Code, § 3801, provides that "bills for divorce may be filed in the chancery district in which the defendant resides, or in the district in which the parties resided when the separation occurred; if the defendant is a nonresident, then in the district in which the other party to the marriage resides." Paragraph 2 of the bill, which sets forth the facts as to the residence, and the separation of the parties, states that they lived together as husband and wife in Morgan county, Ala., up to about May 1907, when they both removed to Birmingham, Ala., "and they lived together as husband and wife for about six weeks; that at the expiration of said time complainant came back to Morgan county to visit her mother, who was then very sick; that, after coming back on said visit to her mother, the respondent would never permit complainant to return to Birmingham, but insisted that she live with her father and mother."

Said paragraph further shows that after complainant had returned to Morgan county, as is above averred, she lived for a while with the father and mother of respondent, who resided in that county; that "during this time your oratrix insisted and urged respondent to permit her to return to Birmingham, and live with him, and insisted that she be treated as his wife, but respondent refused to so treat and provide for your oratrix, and refused to furnish her a home where she would not be imposed upon and mistreated, and upon such refusal, and after she could endure such treatment no longer, she did, on May 15th, move back to her father's home (which home was in Morgan county, Ala.), with whom she has since lived; that since May 15, 1908, complainant has not lived with respondent," etc. Paragraph 5 of the bill is as follows: "Your oratrix further shows that the separation of your oratrix and respondent occurred and took place in Morgan county, Ala." This last paragraph is evidently a futile attempt on the part of the complainant to confer jurisdiction on the Morgan county law and equity court, and to avoid the necessity of filing a bill under the facts averred in the county of Jefferson, as is enjoined by law.

It will be observed that the statutes with regard to divorce proceedings, where the parties are residents, direct that the bill must be filed in the chancery district in which the defendant resides, or in the district in which the parties (both parties) resided when the separation occurred. This bill unquestionably alleges that about May, 1907, both parties, husband and wife, removed from Morgan county to Birmingham, Ala., and that they there lived together as husband and wife for about six weeks, at which time the wife returned to Morgan county, and that respondent would never permit her to return to him at Birmingham, but insisted that she live with her parents, and that later he insisted that she live with respondent's father and mother, who also resided in Morgan county.

There is no attempt to allege that the respondent has ever resided in Morgan county since May, 1907, and it clearly appears that he resided in Jefferson county when the separation took place. It will also be observed that paragraph 5 of the bill does not allege that the "parties resided in Morgan county when the separation took place," but it merely alleges that the separation occurred in Morgan county.

The statute does not authorize the bill to be filed in the county in which the separation occurred, but in the county in which both "parties resided when the separation occurred," though it may have occurred or taken place in a different county or state. It therefore affirmatively appears upon the face of the bill that it was not filed in the proper district, which renders the bill subject to demurrer, or to be dismissed on motion.

It is true that the question of jurisdiction is usually raised by a plea in abatement, and that this is an appropriate mode of presenting this objection; but, when the bill discloses on its face that it is not filed in the proper district or jurisdiction, this renders it subject to demurrer or to be dismissed on motion. Harwell v. Lehman, 72 Ala. 344; Campbell v. Crawford, 63 Ala. 392.

There is another rule of pleading and practice which appellant can and does successfully invoke, and that is that pleadings must be construed most strongly against the pleader, and if the pleading in question is susceptible of two constructions, one of which would render it good and the other bad, the latter must be indulged, because it is the one against the pleader.

To say the most that can be said in favor of the bill, even from an advocate's standpoint, it is uncertain in its...