Tonsmeire v. Tonsmeire

• Decision Date: 10 May 1962
• Docket Number: 1 Div. 998
• Citation: Tonsmeire v. Tonsmeire, 142 So.2d 265, 273 Ala. 462 (Ala. 1962)
• Parties: Arthur C. TONSMEIRE, Jr. v. Doherty C. TONSMEIRE.
• Court: Alabama Supreme Court

Page 265

142 So.2d 265

273 Ala. 462

Arthur C. TONSMEIRE, Jr. v.Doherty C. TONSMEIRE.

1 Div. 998.

Supreme Court of Alabama.

May 10, 1962.

Rehearing Denied June 21, 1962.

D. R. Coley, Jr., Mobile, for appellant.

Otto E. Simon, Moore, Simon & Layden, Mobile, for appellee.

COLEMAN, Justice.

This is an appeal from a decree granting a divorce and other relief.The wife filed her bill of complaint praying for divorce and alimony.The husband filed his cross-bill praying for divorce.After hearing evidence ore tenus, the court denied relief on the wife's bill of complaint and dismissed it, but granted a divorce on the husband's cross-bill and awarded alimony and other relief to the wife.The husband appeals.

Appellee has moved to dismiss this appeal because it was not timely taken.

The motion recites that the decree appealed from was rendered March 15, 1961, that notice of appeal was given March 28, 1961, but no security for costs of appeal was filed until May 26, 1961, which was more than sixty days after the decree was rendered.

As we understand it, appellant concedes that the appeal was not taken within sixty days after the decree was rendered.

The decree appealed from dismissed the appellee's bill of complaint, granted to appellant on his cross-bill a divorce from the bonds of matrimony previously existing between appellant and appellee, permitted the parties to remarry after sixty days as provided by law, awarded custody of five minor children, ordered the parties to comply with a prior agreement relating to church and school attendance of the children, ordered appellant to pay for support of the children, and awarded alimony and solicitor's fees to appellee.

§ 789,Title 7, recites that appeals from decrees of divorce must be taken within sixty days from the date upon which such decree of divorce was rendered, but § 789 applies only when a divorce has been granted by the decree of the court.Moor v. Moor, 211 Ala. 56, 99 So. 316.

A divorce was granted by the decree on which this appeal is founded.Appellant says, however, that he is not complaining of that part of the decree granting the divorce but that he is complaining of other parts of the decree, which he contends are matters separate and distinct from the decree granting divorce.Whether such matters are incidental to and connected with the decree of divorce or separate therefrom we need not decide.The instant decree cannot be distinguished in any material particular from the decree considered in Kelley v. Kelley, 257 Ala. 173, 57 So.2d 873.In the Kelley case, the decree appealed from denied relief on appellant's cross-bill and granted a divorce, custody of children, alimoney, and solicitor's fees to the appellee on her bill of complaint.This court dismissed the appeal because, under the statute it was taken too late.In the case at bar, the divorce was granted on the cross-bill, not on the bill of complaint.If the rule of the Kelley case is not to be here applied, we must hold that appeal need not be taken...