Weems v. Weems

• Decision Date: 22 December 1949
• Docket Number: 8 Div. 553.
• Citation: 43 So.2d 397,253 Ala. 205
• Parties: WEEMS v. WEEMS.
• Court: Alabama Supreme Court

43 So.2d 397

253 Ala. 205

WEEMS v. WEEMS.

8 Div. 553.

Supreme Court of Alabama.

December 22, 1949

Bradshaw & Barnett, of Florence, for appellant.

Potts & Young, of Florence, for appellee.

The bill of complaint is in pertinent part as follows:

'(5) Complainant further avers that for a considerable time prior to the separation of complainant and respondent, respondent falsely accused complainant of having immoral relations with men and that his attitude was generally cruel toward her. That approximately one year prior to the separation of complainant and respondent, the said John S. Weems, at the home of the parties hereto, at Killen, Alabama, Route #2 threatened to kill complainant and the three(3) children of complainant and respondent by blowing their brains out. That on or about March 14, 1949, the said respondent, at said home, threatened to kill complainant, and complainant avers that by reason of said threat on the part of said respondent and by reason of his said treatment of her, that she has been put in fear of being killed by respondent, or of his doing great bodily harm to her, and that she has reasonable apprehension that if she continue to live with respondent she will suffer great bodily harm or death at his hands. Wherefore, on or about March 16, 1949, complainant ceased to live with respondent.'

FOSTER, Justice.

This is an appeal from what is thought to be a decree on demurrer to a bill in equity by the appellee against the appellant praying for a divorce.

Appellee makes the point that the decree is not sufficient to sustain an appeal because it is not an adjudication of the court. It is in the following language: 'This cause being submitted in term time for decree on demurrer and the court having considered same, is of the opinion the demurrer is not well taken and same is hereby overruled and respondent allowed thirty days in which to file answer, and respondent excepts to the ruling of the court.'

We have a long line of cases in this State, the effect of which is to hold that such is not a judgment or decree but is merely expressive of the opinion of the court. Thomas v. White, 244 Ala 128, 12 So.2d 567; Chambers v. Morris, 144 Ala. 626 39 So. 375; Tallassee Falls Mfg. Co. v. Western Railway of Alabama, 128 Ala. 167, 29 So. 203; Hereford v Combs, 126 Ala. 369, 28 So. 582; Bessemer Land & Improvement Co. v. DuBose, 125 Ala. 442, 28 So. 380; Alabama National Bank v. Hunt, 125 Ala. 512, 28 So. 488; Cartlidge v. Stone, 124 Ala. 596, 26 So. 918; McDonald v. Alabama Midland Railway, 123 Ala. 227, 26 So. 165; Bell v. Otts, 101 Ala. 186, 13 So. 43, 46 Am.St.Rep. 117.

We think, however, that it will not be out of place for us to express an opinion with reference to the sufficiency of the bill to withstand the demurrer interposed. The allegations of the bill on which...