Scott v. Scott

• Decision Date: 24 March 1927
• Docket Number: 7 Div. 677
• Citation: 112 So. 218,215 Ala. 684
• Parties: SCOTT v. SCOTT.
• Court: Alabama Supreme Court

112 So. 218

215 Ala. 684

SCOTT v. SCOTT.

7 Div. 677

Supreme Court of Alabama

March 24, 1927

Rehearing Denied April 21, 1927

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Bill for divorce by John Scott against Winnie Scott, and cross-bill by Winnie Scott. From a decree granting the relief prayed by the original bill and dismissing the cross-bill the defendant appeals. Affirmed in part, and in part reversed and rendered.

O.B Roper, of Gadsden, for appellant.

L.B Rainey, of Gadsden, for appellee.

BROWN J.

The original bill was filed January 7, 1926, by the appellee against the appellant, for divorce on the ground of adultery with one Odell Owens, and avers:

"That said illegal relationship existed between the two for a period of several months; that on, to wit, December 6 1925, respondent committed acts of adultery with the said Odell Owens, and on that date complainant and respondent separated, and have not since lived together."

The defendant, appellant here, filed an answer denying the charges made by the bill, and charging the complainant with conduct tending to show reasonable apprehension of violence to her person, attended with danger to her life or health, which was made a cross-bill, and praying for divorce and alimony, temporary and permanent.

On final hearing, the court granted complainant the relief prayed in his bill and dismissed the cross-bill, without recognizing the defendant's right to alimony, and from this decree she appeals.

After careful examination of the case, we are of opinion that the learned trial court erred, and that the decree should be reversed.

While evidence tending to show acts of illicit sexual intercourse between the defendant and Owens subsequent to the filing of the bill was admissible, when offered in connection with or subsequent to the introduction of evidence tending to show adulterous intercourse between the parties during the time covered by the averments of the bill, the right to relief must rest upon proof of the adulterous intercourse charged in the bill. Morrison v. Morrison, 95 Ala. 310, 10 So. 648; Alsabrooks v. State, 52 Ala. 24; Lawson v. State, 20 Ala. 74, 56 Am.Dec. 182.

While the complainant stated in his testimony, that "about December 6, 1925, Odell Owens and my wife committed acts of adultery," his testimony stating the details of the circumstances clearly shows this to be a mere conclusion, and under the statute this conclusion must be disregarded. Code of 1923, § 6565. Aside from this conclusion, there are but three circumstances testified to by complainant upon which he relies to sustain the charge of adultery. One occurred in the summer of 1925, and, to state this in the language of the witness:

"I was sick two weeks last summer, and Owens got him a pass and come to town, and I was sick and come home right immediately behind him; he went in my house, and I went in the window; he went out the back door. I saw her sitting on the bed; the bed appeared as though somebody had been lying on it. Winnie (the defendant) asked me how come I was coming in the house that way. I glimpsed Owens as he went out the back door; he was traveling pretty fast. This was last summer, 1925."

These facts are denied by the defendant and Owens, and in addition the complainant admitted that he lived with the defendant after this occurrence.

The other circumstances are thus stated by the complainant:

"On the 5th of last December, I come home and stopped at her sister's house, and they told me my cousin was bad off sick. This was at night, so I went up there, and she wasn't sick. I went back down to her sister's house, and Winnie was going home, and after I passed the house Odell Owens walked out of her sister's house. I told her, 'You all think you are some sharp; what did you tell me a lie for?' I went on to work on Sunday night the 6th. December last they laid me off two shifts, the 6th and the 7th, and me and Bonnie Lindsay was coming from town, and this fellow Owens went into Winnie's sister's house, and I called Winnie out. She got home

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