Kinsey v. Kinsey

37 Ala. 393

• Court: Supreme Court of Alabama
• Decided: January 15, 1861
• Status: Published

Opinion

R. W. WALKER, J.

1. Repeated decisions-have established it as the law of this State, (and the rule is applicable as well to cases which have arisen since, as to those-whifch occurred before the adoption of the Code.) that where a husband abandons bis wife, without just cause; and casts her upon society, destitute of the means of subsistence, a court of chancery, as an original ground of equity, will entertain a bill filed against-him for alimony. Glover v. Glover, 16 Ala. 440 ; Wray v. Wray, 33 Ala. 187; Mims v. Mims, ib. 98. See, also, Prince v. Prince, 1 Rich. Eq. 282, 287 ; Butler v. Butler, 4 Littell, 201; Boggess v. Boggess, 4 Dana, 307 ; Purcell v. Purcell, 4 H. & M. 507. A husband, who makes against his wife a charge of infidelity,-for which there does not appear to be just cause, and, oír that ground., drives her from his' house,-is considered in law as having abandoned her. — Hardin v. Hardin, 17 Ala. 250 ; 1 Bishop M. & D. §§ 514-15. This is the state of facts alleged and proved in this case. According to the testimony, the defendant deserted his wife, without just cause, and left her unprovided with the means of support. Under these circumstances, she was entitled to a decree for alimony.

2. There is no proof that the complainant had a separate estate. There was, therefore, no necessity for a reference, even if it be conceded that section 1971 of the Code applies to eases-like this, where a divorce is not sought, but only alimony. If the wife has a statutory separate estate, a decree for alimony simply would not deprive the husband of. his right to control such separate estate. There would seem to be no good reason; therefore, why the value of-the statutory separate estate of the wife should'; be considered in fixing the amount of alimony in cases like the present. It is not necessary, however, to decide this question, and we do not do so.

3. Some of the exceptions to the master’s report question the competency of the evidence introduced on the hearing before him. These exceptions, it is clear, were properly overruled ; for the reason, that it does not appear that any objection was- made to the introduction of the evidence at the time it was offered. If either party desires to object to the evidence introduced on the hearing before the register, or is dissatisfied with the ruling of the register as to its admissibility, objection must be made, and exception taken, before the register, and the question reserved for the revision of the chancellor. — Code, § 2.937 ; Taylor v. Kilgore, 33 Ala. 222.

4. In reference to the exceptions which assail the conclusions of the register as to what would be suitable allowances for alimony and counsel fees, as not authorized by the evidence, it is to be observed, that the decree of reference did not direct, nor does it appear that either of the parties applied to the register, to report the evidence to the chan--aellor. The rule 'is said to be, not to report testimony taken before tlie register, unless the decree of reference so directs. When the register is directed to examine and report as to the existence of a fact, or as to any other matter, it is his duty to draw the «conclusion from the evidence produced, and to report that conclusion only. — Kirkman v.Vanlier, 7 Ala. 228 ; -In matter of Hemwith, 3 Paige, 305; 2 Dan. Ch. Pr. 1481, and note. Under our practice, however, when a party files an exception to some particular conclusion or decision of the register, as unauthorised by .the evidence before him, it becomes the duty of the register to report the evidence relating to that matter to the chancellor. — Alexander v. Alexander, 8 Ala. 796; Darrington v. Borland, 3 Por. 39, 40. Although it follows from ¡this, that the evidence accompanying the register’s report ¡was properly before the chancellor on -the hearing of the exceptions, still we think there was no .error in confirming the report. We have seen that, as no objection to its competency was made when it was offered, the evidence which is set out is to be considered as having been all legally before the register, and no question as to its admissibility can .now beuaised. When questions of this.-sort are referred to a register, and he is directeddo draw a conclusion from evidence to be produced before him, every reasonable presumption is to be made in favor of Ms decision, and it will not be interfered with unless it is plainly wrong. All objections to the competency of the proof being considered as waived, we cannot say that the decision of the register, on the matters referred to him, was clearly wrong; and therefore the chancellor did not err in confirming it.

Decree affirmed.