Shelton v. Shelton, 4 Div. 389.

• Decision Date: 13 June 1946
• Docket Number: 4 Div. 389.
• Citation: 248 Ala. 48,26 So.2d 553
• Parties: SHELTON v. SHELTON.
• Court: Alabama Supreme Court

26 So.2d 553

248 Ala. 48

SHELTON v. SHELTON.

4 Div. 389.

Supreme Court of Alabama

June 13, 1946

J Hubert Farmer, of Dothan, for appellant.

Martin & Jackson, of Dothan, for appellee.

LAWSON Justice.

This cause was submitted on motion to dismiss the appeal and on the merits.

On April 13, 1945, appellee, Vivian R. Shelton, filed a bill in equity in the circuit court of Houston County, sitting in equity, against the appellant, William W. Shelton. The purpose of the bill was to have that court set aside and declare null and void a divorce decree theretofore rendered by that court on September 19, 1944, in a cause wherein the appellant in this case, William W. Shelton, was complainant and the appellee here, Vivian R. Shelton, was respondent.

On June 12, 1945, appellant, William W. Shelton, filed a motion in the equity court of Houston County to stay the proceedings on the ground that he was a member of the United States Army and that by reason of such service his ability to defend the action was materially affected.

The applicable section of the Soldiers' and Sailors' Civil Relief Act of 1940 is as follows: 'Stay of proceedings where military service affects conduct thereof. At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.' October 17, 1940, c. 888, § 201, 54 Stat. 1181 Title 50 U.S.C.A. Appendix, § 521.

It appears that on August 18, 1945, a decree was rendered in the equity court of Houston County in favor of the appellee Vivian R. Shelton, and against appellant, William W. Shelton, whereby appellant was required to pay appellee the sum of $40.00 per month as alimony pendente lite for such reasonable length of time as was necessary for appellee, the said Vivian R. Shelton, to prosecute the instant case to final decree, subject to the future orders of the court.

On the same day, that is, August 18, 1945, the equity court of Houston County acted on appellant's motion to stay the proceedings filed against him by appellee and decreed that such proceedings be stayed so long as the appellant pays to appellee the sum of $40 per month as alimony pendente lite, as had been theretofore decreed by the court, as above set out.

It was from the decree staying the proceedings conditionally that the appeal was taken to this court, it being appellant's contention...