Smith v. Smith

• Decision Date: 27 November 1942
• Docket Number: 2 Div. 184.
• Citation: 243 Ala. 488,10 So.2d 664
• Parties: SMITH v. SMITH.
• Court: Alabama Supreme Court

10 So.2d 664

243 Ala. 488

SMITH v. SMITH.

2 Div. 184.

Supreme Court of Alabama

November 27, 1942

The bill, filed September 29, 1941, alleges among other things the following, in substance.

On July 1, 1940, respondent carried complainant to the office of an attorney in Linden, then unknown to complainant. The attorney told respondent he had not had time to prepare the divorce papers, and complainant was requested to sign a blank sheet of paper which she refused to do. As she started to leave the office respondent stopped her and told her "You will sign those papers or you won't go back home"; that unless she signed she would never see her children any more; that she would walk back if she got back, and if she got back, he would kill her. Complainant then voiced the fear that the papers would be fixed so that respondent would get the children, but respondent swore that he would never take the children, that he would let complainant have them and would pay her $20 monthly for support. Complainant then signed the paper, which she thought was a blank sheet. Complainant was not sworn, was not asked any questions, and if there was any writing above her signature, she did not read it nor did any one read it to her. Complainant did not authorize any one to file a bill for divorce for her, but a bill was filed in her behalf, without her knowledge on July 1, 1940. Respondent on said date waived service, and a commission was issued to a commissioner to take the testimony of complainant on interrogatories then filed. On July 27, 1940, note of testimony was filed and on August 19, 1940, a final decree was rendered granting a divorce to complainant and giving custody of the children to respondent. Copies of said instrument are exhibited with the bill.

It is further averred that complainant did not give any one the facts set forth in said bill filed in her name, and that many of the allegations made are untrue, and that complainant did not know until September 6, 1941, when respondent took the children from her, that the court had awarded custody of the children to respondent.

Thos H. Boggs, of Linden, for appellant.

A. S Johnson, of Thomasville, for appellee.

FOSTER Justice.

This appeal is by the respondent in a bill in equity in the nature of a bill of review of a decree of divorce rendered in the same county and in the same court in which the present bill was brought. Demurrer was overruled.

Appellant has argued several matters which are claimed to show error in the ruling.

The first contention is raised by the third ground of demurrer that is, in substance, that it does not allege that defendant was a resident of the county in which the present bill was filed. This ground may sufficiently raise the question of venue, though a general ground for want of equity is not alone sufficient. Kyser v. American Surety Co., 213 Ala. 614, 105 So. 689. But such a general ground does not waive another ground which duly makes the point as to venue. Hammons v. Hammons, 228 Ala. 264, 153 So. 210.

But the contention is not well sustained. While such a bill need not necessarily be filed in the county in which the decree under attack was rendered (Fox v. Fox, 235 Ala. 338, 179 So. 237), this does not mean to set aside the principle that it may also be filed in the same county in which the decree was rendered. Shrader v. Walker, 8 Ala. 244; Butler v. Butler, 11 Ala. 668; section 294, Title 7, Code of 1940.

The next contention is that the allegations of fraud are not sufficient to meet the strict rule applicable to such form of relief. Admitting the strictures of the rule so often stated, it is our opinion that the allegations of the bill are amply sufficient. Miller v. Miller, 234 Ala. 453, 175 So. 284; Id., 238 Ala. 228, 189 So. 768; Fox v. Fox, supra.

Appellant also contends that the bill shows negligence on the part of complainant and laches in filing the suit. No negligence appears, and it was filed within three years after the rendition of the decree sought to be vacated. This is sufficient by analogy to the time limit in Equity Rules Rule 66, Chancery Practice, Code of 1940, tit. 7, appendix (section 6608, Code of 1923); Heflin v. Ashford, 85 Ala. 125, 3 So. 760; Nichols v. Dill, 222 Ala. 455, 132 So. 900; Cunningham v. Wood, 224 Ala. 288, 140 So. 351. To this limit there is added the features of section 42, Title 7, Code of 1940 (section 8966, Code of 1923), where applicable. But with that we are not here concerned. That statute when applicable serves as an additional period, not a limitation. Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73 (24).

The bill was also for supplementary relief and sought a divorce, alimony and custody of the children. To this aspect of it, demurrer was interposed. We will treat the demurrer on the theories advanced in brief for appellant.

The first contention is that as a bill for divorce it does not appear from it either that defendant resides in Marengo County, or that the parties resided in that county when the separation occurred, as required by section 28, Title 34, Code of 1940, citing Pucket v. Pucket, 174 Ala. 315, 56 So. 585.

There are two good and sufficient answers to the contention. One is that if the bill for review is properly filed in Marengo County that court in the same proceeding...