Prickett v. Prickett

42 So. 408, 147 Ala. 494, 1906 Ala. LEXIS 268

Opinion

DOWDELL, J.

The bill in this case, as originally filed, sought to enforce a resulting trust in land, and at the same time on independent averments sought to have alimony decreed to complainant out of the estate of the respondent, the husband of complainant. These were distinct and separate subjects, and in no way connected, the one with the other. The relief prayed for is likewise separate and distinct. The bill, therefore, was demurrable for multifariousness. — 16 Cyc. p. 241; Heins v. White, 105 Ala. 670, 673, 17 South. 185.

The bill was demurred to as multifarious, and this demurrer was confessed. The bill was then amended, but the amendment in no wise relieved the bill of this objectionable feature, since both subjects were retained, and the prayer of the bill was unchanged. A demurrer to the bill as amended was then interposed, and sustained on the ground of multifariousness. The bill was then again amended to conform to the ruling on demurrer. The bill, as last amended, became one simply and alone by the wife for support and maintenance from the husband.' The bill was brought in the chancery court of Clay county, and it affirmatively appeared in the bill that the respondent Aims a resident of Talladega county. Objection to the bill on this ground was raised by motion to dismiss, by demurrer, and by plea. The chancellor dismissed the bill, and this appeal is prosecuted from the decree dismissing the bill.

Where it affirmatively appears on the face of the bill that the respondent is sued out of the county of his residence, a demurrer is sufficient to raise the objection.— Campbell v. Crawford, 63 Ala. 392. As long as real estate remained as one of the subject-matters of the bill, the bill having been filed in the county where the land was situated, no objection could be taken to the bill on the ground that it Avas not filed in the county of the respondent’s residence. Under the statute, Avíien real estate is the subject-matter of the suit, “whether it be the exclusive subject-matter of the suit or not,” the bill may be filed in the district Avhere the same, or a material portion thereof, is situate. — §76, code'1896. The defendant, therefore, could not raise the question of jurisdiction until after the bill had been amended eliminating the real estate as a subject-matter of the suit. The chancellor properly dismissed the bill, and the decree will be affirmed.

Affirmed.

Weakley, C. J., and Haealson and Denson, JJ., concur.