Ex parte Edwards

62 So. 775, 183 Ala. 659, 1913 Ala. LEXIS 514

• Court: Supreme Court of Alabama
• Decided: May 15, 1913
• Status: Published

Opinion

SAYRE, J.

— We are not much impressed with the idea that complainant in the court below will be entitled to relief, either by way of divorce or by way of an annulment of his marriage with defendant, on any ground alleged in his bill, though that will remain an open question until the final decree shall be rendered. We state our impression, for the reason that complainant’s denial of the lawfulness of his marriage with defendant and defendant’s application for allowances pendente lite made it necessary in the court below to determine provisionally the question of marriage vel non between the parties.

The decree by which defendant was divorced from one of her former husbands may have been collusively obtained; that is, there may have been an understanding that no defense would he interposed, and that the defendant there should be allowed to marry again. But the court there had jurisdiction of the subject-matter and of the parties, and for aught appearing, the ground of divorce there set up existed, and was proved by trustworthy testimony. As for the decree allowing the defendant to marry again, that rested entirely in the chancellor’s discretion, and neither that nor the decree of divorce can now be assailed collaterally on any ground so far taken against them. Harrison v. Harrison, 19 Ala. 499; 14 Cyc. 723.

The essential equity of the wife’s application for allowances depended upon the disputed validity of the marriage between the parties. This question then should have been determined by the court, though the inquiry as to the amount of the allowances to be made was properly referred to the register. However, the evidence as to the main fact was reported to the court by the register, and, on exceptions, the court properly adjudged the fact. In this there was nothing of which the petitioner in this proceeding can complain.

As the case appears to us, defendant has no great claim on the court’s consideration in respect to the allowances claimed by her. But we do not propose to engage in an uncomplimentary discussion of the affairs of these people. Defendant, her marriage with complainant having been established prima facie, is entitled as of legal right to some provision for her maintenance pending the suit, and probably, also, she should have an allowance to aid her in the employment of counsel. But it does not follow that because complainant’s means are large the allowances to defendant should be large. The court should consider what manner of woman she appears to be, her means, her ability to earn a livelihood, and what promise of complication the proceeding holds. Bulke v. Bulke, 173 Ala. 138, 55 South. 490. In the circumstances of these parties, we are of opinion that an allowance of $50 a month for maintenance and $100 for her counsel would be proper. Allowances made in conformity with the view we hold at this time may be changed by the chancellor if the litigation should persist and future developments shall indicate the propriety of a change. Ex parte Jones, 172 Ala. 186, 55 South. 491.

Mandamus in cases of this character serves the purpose of an emergency appeal. Appellant may have what relief he shows himself entitled to, though in his application for the writ he sought too much. A writ of mandamus will issue requiring a decree in the court below to accord with the views we have expressed, unless the chancellor upon being informed of our conclusion shall make such decree without the writ.

Mandamus awarded.

All the Justices concur, except Dowdell, C. J., not sitting.