Lawrence v. Lawrence

141 Ala. 356

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

TYSON, J.

The motion to strike the 4th, 5th and 6th assignments of error must be granted. These assignments are predicated upon an interlocutory decree allowing complainant alimony pendente lite. There is no statute authorizing an appeal from such an order. Jeter v. Jeter, 36 Ala. 391, 403. Furthermore, such an order, upon proper application, may be made by the chancellor pending an appeal of the cause in this court. Ex parte King, 27 Ala. 387.

The other assignments of error, insisted upon, complain of the overruling by the chancellor of the demurrer, comprised of five grounds, to the bill.

The first ground challenges the sufficiency of tlue allegations of the fourth paragraph of the bill because the fact of defendant’s adultery with Mamie Vann is not averred, but a mere conclusion of tbei pleader is stated. It is charged in this paragraph “that respondent practically resides with Mamie Vann and continues such illicit intercourse with her.” Following as it does the allegation that complainant “has only recently come into possession of the knowledge of the unfaithfulness of the respondent to his marital vows to her, • and has learned that respondent has been and is now guilty of acts of illicit intercourse or .adulterous acts, with one Mamie Vann,” is a sufficient averment of the fact of respondent’s adultery.

The other assignments of the demurrer question the sufficiency of the sixth paragraph of tbei bill which alleges that respondent is engaged in a profitable occupation by which he acquires ample means for the support of complainant, but furnishes practically nothing therefor ; that he is well able: to respond to a decree providing for temporary alimony and solicitor’s fees, etc.

Section 1495 of the Code provides that: “Pending a suit for divorce, the court must make an allowance for the support of the wife out of tine estate of the husband, suitable to. his estate and the condition of life of the parties.”

It has been frequently held that the benefit conferred by this statute upon the wife is a. matter of right and not one within the discretion of the court. In order, however, for the wife to avail herself of the benefit conferred by the statute, we apprehend, that sba must either by her bill — when she is complainant,, or by her answer, when she is respondent, or by some: other appropriate allegation of “faculties,” as it is called, on the part of the wife, set out the estate of the husband, or that the husband has property out of which such an allowance can be granted. — Lovett v. Lovett, 11 Ala. 763, 771; 1 Am. & Eng. Ency. Pl. & Pr. pp. 421, 422.

It appears, hoivever, by the record that the demurrer under consideration was filed after the chancellor had made an order referring to tbei register the matter of ascertaining what property was owned and possessed by respondent, etc., etc., and after his appearance before tli© register on the reference held by him and after the register reported upon these matters to which report he excepted. Conceding the defectiveness of the allegations, the demurrer came too late. After acquiescing in the sufficiency of the: allegation until all these things had occurred, he will not be allowed to raise the objection that they do not sufficiently show that he has an estate. — Lovett v. Lovett, supra.

Affirmed.