Rickerson v. Rickerson

• Decision Date: 05 June 1919
• Docket Number: 8 Div. 176
• Citation: 203 Ala. 203,82 So. 453
• Parties: RICKERSON v. RICKERSON.
• Court: Alabama Supreme Court

82 So. 453

203 Ala. 203

RICKERSON v. RICKERSON.

8 Div. 176

Supreme Court of Alabama

June 5, 1919

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Bill for divorce by W.F. Rickerson against Pearl Rickerson. From an order allowing temporary alimony and solicitor's fee and overruling motion to set aside the allowance, complainant appeals. Appeal dismissed.

Appellant filed the bill in this cause seeking a divorce from appellee his wife. Answer was filed whereby the wife sought alimony and reasonable attorney's fee pending the suit. A reference was ordered by the court. Upon the reference it was agreed by counsel for the respective parties that $30 per month would be a reasonable allowance for temporary alimony and $100 for solicitor's fee. The register so reported in conformity with said agreement, and this report was duly confirmed. On October 24, 1918, the court entered a decree or order confirming said report in all respects, and ordering the payment of such temporary alimony and solicitor's fee. Said decree also provided as follows:

"It is further ordered, adjudged, and decreed that all proceedings in this cause be suspended until the said alimony or allowance now due, and also the solicitor's fee, is paid."

In January, 1919, the complainant moved the court to set aside the above decree of October 24th, among other grounds for the reason that it was without authority of law. This motion was on January 20, 1919, overruled; and on February 6th thereafter, complainant prosecuted this appeal.

James L. Almon, Henry D. Jones, and Travis Williams, all of Russellville, for appellant.

Ray & Cooner, of Jasper, and W.L. Chenault, of Russellville, for appellee.

GARDNER J.

It is insisted by counsel for appellee that the appeal in this cause must be dismissed. The point is well taken. It is quite clear that the decree of the court overruling the motion to set aside the decree of October 24, 1918, is not such an interlocutory decree as to come within any of the provisions of section 2838 et seq. of the Code of 1907. The decree of October 24, 1918, is, of course, not a final decree, but one purely interlocutory in its nature, providing for alimony pending the suit.

If by reason of any change in circumstances of the complainant's condition in life such allowance of temporary alimony should be modified or reduced, or he feels that he should be relieved of the payment of any installments past due, it is open to him to make application for such purpose to the chancellor, who exercises the sound judicial discretion in such matters, and whose conclusions thereon can only be reviewed by writ of mandamus and not appeal. Ex parte Jones, 168 Ala. 183, 53 So. 261; ...