Wood v. Wood

• Decision Date: 22 September 1955
• Docket Number: 8 Div. 801
• Citation: 263 Ala. 384,82 So.2d 556
• Parties: Howard William WOOD v. Katherine P. WOOD.
• Court: Alabama Supreme Court

Page 556

82 So.2d 556

263 Ala. 384

Howard William WOOD v. Katherine P. WOOD.

8 Div. 801.

Supreme Court of Alabama.

Sept. 22, 1955.

Harold T. Pounders, Florence, for appellant.

Orlan B. Hill, Florence, for appellee.

GOODWYN, Justice.

Appellee filed a bill of complaint in the circuit court of Lauderdale County, in equity, against appellant seeking a divorce a vinculo matrimonii on the grounds of cruelty and also praying that the legal title to certain land, household furnishings and appliances, towards the purchase of which appellee had paid her individual funds, be divested out of appellant and vested in appellee. The bill also seeks alimony and solicitor's fees. Appellee answered the bill, denying most of its material averments and making his answer a crossbill. By the cross-bill he seeks a divorce from appellee on the ground of adultery.

This appeal is from the final decree granting a divorce to appellee and divesting out of appellant and vesting in appellee the title to said property, the decree providing that the property 'is vested in complainant both in response to prayer to that effect in the bill of complaint and in response to general claims for alimony,' subject to existing encumbrances.

Appellee makes the point that appellant's brief does not comply with Rule 9, Revised Rules of the Supreme Court, effective June 1, 1955, 261 Ala., Preface, pp. XIX, XXII, and for this reason should be affirmed. Rule 9 supersedes preexisting Rule 10, Code 1940, Title 7, Appendix, p. 1008. This rule, both old and new, among others, was adopted in aid of this court's consideration of errors relied on by the appellant for reversal. With respect to old Rules 10 and 11, prescribing the manner of preparing appellant's and appellee's briefs, we have said that they 'were designed to serve useful and practical purposes, to enable this court to determine from the briefs of counsel whether there was error in proceedings in the court below, without making it necessary to explore the entire record.' Schmale v. Bolte, 255 Ala. 115, 117, 50 So.2d 262; Stanley v. Beck, 242 Ala. 574, 577, 7 So.2d 276; New York Life Ins. Co. v. Mason, 236 Ala. 44, 49, 180 So. 775, at page 780. Patently present Rule 9 is designed for the same purpose.

It seems to us that the rules prescribing the manner of preparing briefs are clearly stated and that there should be no difficulty in complying with them. Although appellant's brief is not in strict compliance with the rules we are inclined to exercise our discretion in the matter and give consideration to it. Schmale v. Bolte, supra; Simmons v. Cochran, 252 Ala. 461, 463, 41 So.2d 579; Guy v. Lancaster, 250 Ala. 287, 290, 34 So.2d 499; Brothers v. Brothers, 208 Ala. 258, 259, 94 So. 175.

There appears to be no question as to the propriety of the wife seeking, in her bill for divorce a vinculo, to have the court divest the legal title to the property out of the husband and vest it in her. O'Bannon v. O'Bannon, 257 Ala. 246, 249, 58 So.2d 779; Speegle v. Speegle, 251 Ala. 525, 526, 38 So.2d 339; Roberts v. Roberts, 247 Ala. 302, 303, 24 So.2d 136; Coffey v. Cross, 185 Ala. 86, 93, 64 So. 95; Singer v. Singer, 165 Ala. 144, 149, 51 So. 755, 29 L.R.A.,N.S., 819, 138 Am.St.Rep. 19, 21 Ann.Cas. 1102.

It is thus stated in O'Bannon v. O'Bannon, supra [257 Ala. 246, 58 So.2d 782]:

'On account of the divorce which destroys her homestead and dower rights in her husband's property, and in lieu thereof and for her support, the court may award alimony either in money or property. It could very properly take into consideration the contentions made by her with respect to her contributions both in money and services in building the house. * * *'

From Singer v. Singer, supra [165 Ala 144, 51 So. 757] is the following:

'One of the grounds of equitable jurisdiction is to avoid a multiplicity of suits, and where the only two parties interested are before the court, and there is no repugnancy, and no mixing of incongruous subjects, there seems to be no reason why it should be necessary to have two suits. In fact, in the present case, there is no question about the right to provide for alimony, and, in order to act intelligently on that question, it is necessary that the court ascertain what property the husband has and what property the wife has, and if the point is raised that certain property, standing in his name, really belongs to her, it...