Tillery v. Tillery

115 So. 27, 217 Ala. 142, 1927 Ala. LEXIS 366

• Court: Supreme Court of Alabama
• Decided: October 13, 1927
• Docket: 6 Div. 937.
• Status: Published

Opinion

BROWN, J.

The statutes conferring jurisdiction on courts of equity to divorce persons from the bonds of matrimony limit the jurisdiction by prescribing the causes or grounds upon which divorces may be granted, prescribing the procedure and requiring that "the cause "for which the decree is sought mmst he alleged in the hill,” and prohibiting the granting of a decree on the confession of the parties, or either of them, or on certain statutory grounds produced by connivance, or where both .parties are guilty, or the offense has been condoned. Code 1923, §§ 7407-7413. This jurisdiction do.es not exist independent of. the statute, and hence courts of equity, in exercising jurisdiction to grant divorce a vinculo, are courts of statutory and limited jurisdiction, and it is essential to the validity'of the proceedings-, that the , jurisdictional facts affirmatively appear from the record. Martin v. Martin, 173 Ala. 111, 55 So. 632; Crimm v. Crimm, 211 Ala. 13, 99 So. 301; 7 Mayf. Digest, p. 254.

One of the jurisdictional facts essential to the validity of the proceedings is that a. ^statutory cause or ground for divorce" must be alleged in the bill, and failing in this the proceedings are coram non judice and therefore wholly void. Martin v. Martin, supra; Trammell v. Pennington, 45 Ala. 673; Joiner v. Winston, 68 Ala. 129; State v. M. & G. R. R. Co., 108 Ala. 29, 18 So. 801; Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903; Wiley v. State, 117 Ala. 158, 23. So. 690.

The bill in this case is by the wife against the husband, and the only ground alleged in the bill is stated thus:

“The complainant avers that hitherto in, to wit, the month of March, 1926, said respondent on two or more occasions so conducted and bemeaned himself toward complainant as to generate in the existence and mind of complainant a reasonable apprehension of actual violence on his part toward her.” (Italics supplied.)

It follows, therefore that the decree of April 27, 1926, is void in so far as it undertook to dissolve the marriage relation existing between the parties, and that relation still exists.

Aiding these averments with every reasonable intendment, as a matter-of construction, they fall far short of showing, or tending to show, that “the husband has committed actual violence on her person, attended, with danger to life or health” or that from his conduct there was “reasonable apprehension of such violence.” Code 1923, § 7409; Farmer v. Farmer, 86 Ala. 322, 5 So. 434; Wood v. Wood, 80 Ala. 254; Folmar v. Folmar, 69 Ala. 84.

It clearly appears that the other relief granted by the decree was incidental to the abortive divorce proceedings, and the entire decree must be pronounced void.

The decree being void for want of jurisdiction, the subsequent proceedings, seeking to modify the original void decree, were likewise without jurisdiction, and the subsequent decree is also void, and will not support the appeal. Gunter v. Mason, 125 Ala. 644, 27 So. 843; White v. Hewlett, 143 Ala. 374, 42 So. 78.

Appeal dismissed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.