Campbell v. Campbell

5 So. 2d 401, 242 Ala. 141, 1941 Ala. LEXIS 266

• Court: Supreme Court of Alabama
• Decided: December 4, 1941
• Docket: 5 Div. 349.
• Status: Published

Opinions

BROWN, Justice.

This is a bill by a non compos mentis husband against his wife, filed prochein ami, for divorce on the ground that she had committed adultery since the marriage, and in the alternative, for dissolution of the marriage on the ground that he was insane at the time it was solemnized.

The defendant demurred to the different aspects of the bill on the ground that it is without equity and on numerous grounds. The circuit court sustained the demurrer to the- aspect of the bill which seeks a divorce a vinculo matrimonii on the ground of adultery, and overruled it as to the other aspect.

The contention of the appellee is that the voluntary election or assent to the proceeding by the non compos mentis complainant is essential to confer jurisdiction on the court to grant such divorce on statutory grounds.

The rule sustained by the weight of authority is, in the absence of statute so authorizing, an insane person can not bring an action for divorce, nor can his guardian, committee or next friend bring such action in his name and behalf. Stevens v. Stevens, 266 Mich. 446, 254 N.W. 162, citing 70 A.L.R. 964 and 19 C.J. 98; 17 Am. Juris, p. 290, § 272, citing Worthy v. Worthy, 36 Ga. 45, 91 Am.Dec. 758; Mohler v. Shank’s Estate, 93 Iowa 273, 61 N.W. 981, 34 L.R.A. 161, 57 Am.St.Rep. 274, and other cases; 27 C.J.S., Divorce, p. 672, § 89.

This line of authorities holds that a decree of divorce procured on a bill filed by the next friend or guardian in the name of the lunatic is void for want of jurisdiction in the court to grant it. Worthy v. Worthy, and Mohler v. Shank, supra.

By statute in England the guardian or committee of a lunatic is authorized to bring and prosecute such suit in the name and behalf of the lunatic, and like authority is given by the statutes of Massachusetts. 9 R.C.L. 406, § 204; Garnett v. Garnett, 114 Mass. 379, 19 Am.Rep. 369; Cowan v. Cowan, 139 Mass. 377, 1 N.E. 152.

This court before the enactment of the statutes brought forward through the several Codes since 1852, and now § 6519 of the Code of 1923, in force when the bill in this case was filed, in Mims v. Mims, 33 Ala. 98, recognized the right of an insane wife to maintain a bill filed by next friend or a committee appointed by the court,, against her husband for alimony.

Construing § 6519, supra (supplanted by Equity Rule 8, Code of 1940, Tit. 7, p. 1047), as in pari materia with §§ 7407 and 7410, Code 1940, Tit. 34, §§ 20, 23, they authorize the bill to be filed by the next friend for and in the name of the non compos mentis, complainant. Upshaw v. Eubank et al., 227 Ala. 653, 151 So. 837.

The pertinent provisions of these statutes are:

Code of 1923, § 6519: “Persons of unsound mind may sue by next friend, and guardians may be substituted; and upon restoration to sanity, the suit may proceed in their own names.”

Code of 1923, § 7407: “The circuit court in equity has power to divorce persons from the bonds of matrimony, upon bill filed by the aggrieved party, for the causes following * * * 2. For adultery.”

Code of 1923, § 7410: “The proceeding must, in all respects, be conducted as other suits in chancery, except as herein otherzvise directed.” [Italics supplied.]

The italicized clause refers to the provisions immediately following in said sections, to the provision of § 7411, Code 1940, Tit. 34, § 24, as to the effect of the answer, and the provision of § 7413, Code 1940, Tit. 34, § 26, prohibiting decrees by consent of the parties, or where the parties consented to the act made the basis of the ground for the divorce.

The court has ample power to. protect the interest of the incompetent com •plainant, and the equity of the bill must be determined on its averments, independent of the state of the complainant’s mind as if he were suing of his own volition. Whetstone v. Whetstone’s Ex’rs, 75 Ala. 495.

The circuit court erred in sustaining the demurrer to the aspect of the bill seeking .a divorce on the ground of adultery.

Reversed and remanded.

THOMAS, FOSTER and LIVINGSTON, JJ., concur. GARDNER, C. J., and BOULDIN, J., ■dissent.