Stabile v. Stabile

• Decision Date: 15 January 1920
• Docket Number: 6 Div. 969
• Citation: 203 Ala. 635,84 So. 801
• Parties: STABILE v. STABILE.
• Court: Alabama Supreme Court

84 So. 801

203 Ala. 635

STABILE v. STABILE.

6 Div. 969

Supreme Court of Alabama

January 15, 1920

On Rehearing, February 5, 1920

Appeal from Circuit Court, Jefferson County; Horace C. Wilkerson Judge.

Bill by Frances Stabile against Sam Stabile for divorce. Decree for complainant, and respondent appeals. Reversed, and bill dismissed without prejudice.

C.B Powell, of Birmingham, for appellant.

Palmer Daugette, of Birmingham, for appellee.

McCLELLAN J.

The appellee was granted a divorce a vinculo from the appellant on the ground--the only one insisted upon--that the husband (appellant) had "committed actual violence on her person, attended with danger to life or health, and that from his conduct there is reasonable apprehension that he will do her bodily violence"--a charge referable, in a way, to Code, § 3795.

It appears from a careful review of the whole evidence that the complainant (appellee) did not discharge the burden of proof to establish the charge of cruelty, or danger to life or health, from the acts of the appellant. The distinct weight of the legally admissible, credible evidence was opposed to the charge preferred as ground for divorce. Furthermore, it was proven that complainant (appellee) was guilty of adultery after she left appellant at Cleveland, Ohio, which appears to have occurred before Christmas, 1917, and that a child was born to her in October, 1918. She testified on her cross-examination that she did "not know whether or not the respondent, my husband, is the father of my baby. *** I do not know who is the father of this child." A divorce will not be granted a complainant where there exists another statutory ground for divorce in favor of the defendant; and even where such reciprocal causes of divorce are both proven under separate bills, the court will not grant a divorce to either party. Ribet v. Ribet, 39 Ala. 348-350. This decision is in immediate point.

The decree appealed from is reversed, and a decree will be here rendered dismissing the complainant's (appellee's) bill.

Reversed and rendered.

ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

McCLELLAN J.

The argument in support of the application for rehearing has been considered in the light of a re-examination of the record. Of course, the review on appeal is restricted to the record of the cause in the trial court, and no subsequently occurring fact or action elsewhere can be considered. The court remains convinced of the correctness of both the conclusions of fact and of law stated in the foregoing opinion. It would serve no desirable purpose to note and further comment upon the evidence requiring the prevailing conclusions of fact. There being no foundation in the record for the view that collusion to secure a divorce, within the purview of Code, § 3799, characterized the conduct or statements of these parties, none of the provisions of Code, § 3799, have any application to this cause. The progenitor of Code, § 3799, was section 1966 of the Code of 1852. That was the statute in effect when Ribet v. Ribet, 39 Ala. 348, cited in the original opinion, was decided. This was then held, most pertinently to the present circumstances, with particular reference to the Code:

"In view of the provisions of the Code of Alabama on the subject of divorce, and the general current of authority, we hold the doctrine that any one of the statutory causes for a divorce may be set up in bar of a bill for a divorce a

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