McMahon v. McMahon

54 So. 165, 170 Ala. 338, 1910 Ala. LEXIS 277

• Court: Supreme Court of Alabama
• Decided: December 22, 1910
• Status: Published

Opinion

ANDERSON, J.

Paragraph 6 of section 3793, which said section enumerates certain grounds for divorce, says: “For becoming addicted after marriage to habitual drunkenness.” This section does not, of course, mean that if ,a party becomes addicted to the habit after marriage, but overcomes same for a reasonable period before any steps were taken for a divorce, and no steps were taken to get a divorce until after the habit had been overcome, the once existence of the habit, which did not continue to exist at or near the time of filing of the bill, would be a ground for divorce. Here the parties were married 23 years before the bill was filed, and the respondent may have become addicted to the habit shortly after the marriage, yet may have overcome it for years before the bill was filed, and the statute was not intended to apply to such a case. The habit must be fixed, and must continue until the suit is brought.—Gourlay v. Gourlay, 16 R. I. 705, 19 Atl. ; 9 Am. & Eng. Encyc. of Law, 814, and cases cited in notes 8 and 9.

The bill, however, avers that subsequent to said marriage the said respondent “has become addicted to habitual drunkenness.” This is the equivalent of averring that he still is or was addicted to the habit when the bill was filed.—Dolan v. State, 122 Ind. 141, 23 N. E. 761. Nor did the complainant have to set out the details, or specify the acts of drunkenness, and the demurrers testing this theory of the bill were properly overruled.

When a divorce is sought for cruelty, as provided by section 3795 of the Code of 1907, while great particularity of averment is not required as to the dates or detail, yet good pleading would require more, than was averred in the present bill as to the respondent’s conduct. It should, at least,'give the nature and character of the cruelty.—Smedley v. Smedley, 30 Ala. 714; Reese v. Reese, 23 Ala. 785. We cannot, however, put the chancery court in error for overruling the respondent’s demurrers, as they go to the whole bill, which contains equity independent of the charge of cruelty. “A demurrer to a bill as a whole cannot be sustained, if for any equity appearing in it the complainants are entitled to relief.”—Beall v. Lehman Durr & Co., 110 Ala. 446, 18 South. 230, and cases there cited.

The decree of the chancery court is affirmed.

Affirmed.

Dowdell., C. J., and Sayre and Evans, JJ., concur.