Scott v. Scott, 8 Div. 329.

• Decision Date: 06 December 1945
• Docket Number: 8 Div. 329.
• Parties: SCOTT v. SCOTT.
• Court: Alabama Supreme Court

24 So.2d 25

247 Ala. 266

SCOTT
v.
SCOTT.

8 Div. 329.

Supreme Court of Alabama

December 6, 1945

J. Foy Guin, of Russellville, for appellant.

H. H. Hamilton, of Russellville, for appellee.

LAWSON, Justice.

This is an appeal taken by complainant in a divorce suit from a decree rendered [24 So.2d 26] on application for rehearing filed by respondent below, appellee here.

[247 Ala. 267] Although there is no motion by appellee to dismiss the appeal, we are of the opinion that it must be dismissed, since the decree is not one which will support an appeal.

The suit was filed in the Law and Equity Court of Franklin County, which court has concurrent equity jurisdiction with the circuit courts of this State. Local Acts 1923, page 272; Ex parte Johnson, 238 Ala. 584, 192 So. 508. We are not here called upon to construe any of the specific provisions of this act, but it is observed that there is no provision contained therein for an appeal in divorce cases when one does not exist in the circuit court in equity under like circumstances.

Rule 62, Equity Practice, Code of 1940, Title 7 Appendix, page 1097, prescribes the procedure for filing applications for rehearing in equity cases and contains the following provision: 'The judge may grant or overrule said application or modify said decree, as justice may require, or set same down for rehearing, upon such terms and conditions as he may deem just. In any event the judge must enter an order or decree setting forth his ruling. No appeal will lie from such order unless it modifies the decree.' (Emphasis supplied.) It has been held that Rule 62, supra, does not authorize an appeal from a decree overruling a motion for rehearing. Money v. Galloway, 236 Ala. 55, 181 So. 252. In the case of Linn v. Linn, 242 Ala. 688, 8 So.2d 187, it was held that an appeal is not authorized by that rule from an order setting a decree aside.

The pivotal question in the instant case in so far as determining whether or not the decree from which the appeal is taken will support an appeal is, does the decree modify the original decree within the meaning of Rule 62, Equity Practice, supra. For the purpose of discussing that question, but for that purpose alone, we deem it advisable to set out briefly the circumstances leading up to the decree from which this appeal has been taken.

The bill for divorce, filed on December 28, 1944, by the appellant against his wife, appellee, sought a divorce on the ground of adultery and prayed that the custody of the two minor children, the issue of the marriage, be committed to him.

Appellee was duly served with summons but made no appearance within the time prescribed by law and on proper showing a decree pro confesso was rendered on February 5, 1945. On testimony taken and submitted a final decree of divorce was rendered on February 7, 1945, by which the right of custody of the two minor children was awarded to appellant, complainant below.

On February 16, 1945, appellee filed her 'application for a rehearing from the final decree dated February 7, 1945, and to set aside final decree in so far as it grants the sole custody and control of the named minors to complainant,' and assigned the following grounds: '(1) That the same was contrary to law; (2) that the same was contrary to the evidence; (3) for that after service or process was had on her it was agreed between her and the complainant in that cause...