Opinion
2 Div. 184.
November 27, 1942.
Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.
Bill in nature of a bill of review by Minnie Bertha Smith against James Wesley Smith. From a decree overruling a demurrer to the bill, respondent appeals.
Affirmed.
The bill, filed September 29, 1941, alleges among other things the following, in substance.
On July 1, 1940, respondent carried complainant to the office of an attorney in Linden, then unknown to complainant. The attorney told respondent he had not had time to prepare the divorce papers, and complainant was requested to sign a blank sheet of paper which she refused to do. As she started to leave the office respondent stopped her and told her "You will sign those papers or you won't go back home"; that unless she signed she would never see her children any more; that she would walk back if she got back, and if she got back, he would kill her. Complainant then voiced the fear that the papers would be fixed so that respondent would get the children, but respondent swore that he would never take the children, that he would let complainant have them and would pay her $20 monthly for support. Complainant then signed the paper, which she thought was a blank sheet. Complainant was not sworn, was not asked any questions, and if there was any writing above her signature, she did not read it nor did any one read it to her. Complainant did not authorize any one to file a bill for divorce for her, but a bill was filed in her behalf, without her knowledge on July 1, 1940. Respondent on said date waived service, and a commission was issued to a commissioner to take the testimony of complainant on interrogatories then filed. On July 27, 1940, note of testimony was filed and on August 19, 1940, a final decree was rendered granting a divorce to complainant and giving custody of the children to respondent. Copies of said instrument are exhibited with the bill.
It is further averred that complainant did not give any one the facts set forth in said bill filed in her name, and that many of the allegations made are untrue, and that complainant did not know until September 1941, when respondent took the children from her, that the court had awarded custody of the children to respondent.
Thos. H. Boggs, of Linden, for appellant.
When bill shows improper venue and demurrer assigns that ground and other grounds, it should be sustained regardless of other grounds. Hammons v. Hammons, 228 Ala. 264, 153 So. 210. When improper venue is shown, such defect may be taken by general demurrer; otherwise it must state ground specially. Hammons v. Hammons, supra. In divorce proceeding, bill can only be filed in county where defendant resides. Puckett v. Puckett, 174 Ala. 315, 56 So. 585; Hammons v. Hammons, supra. Bill to set aside divorce decree is maintainable only in county in which defendant resides. Code 1940, Tit. 7, § 294; Fox v. Fox, 235 Ala. 338, 179 So. 237; Benton v. Benton, 214 Ala. 321, 107 So. 827. Divorce decree could not be set aside by bill of review by showing merely that evidence on which decree was rendered was false and perjured and ground of divorce as alleged was not proven by credible evidence. Miller v. Miller, 238 Ala. 228, 189 So. 768. To avail of statute, facts and circumstances constituting fraud should be averred with precision, how and when discovered, what prevented a discovery before bar of statute was complete; and complainant should acquit herself of all knowledge of facts which ought to have put her on inquiry. Gordon's Adm'r v. Ross, 63 Ala. 363; Tillison v. Ewing, 91 Ala. 467, 8 So. 404; Hudson v. Moore, 239 Ala. 130, 194 So. 147; Taylor v. South N. Alabama R. Co., C.C., 13 F. 152. It is incumbent on wife to set out in her pleading estate of husband from which allowance of alimony may be had, and she must be without sufficient means. Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866; Lawrence v. Lawrence, 141 Ala. 356, 37 So. 379.
A. S. Johnson, of Thomasville, for appellee.
The facts averred constitute such fraud as to give complainant the right to maintain the bill. Miller v. Miller, 234 Ala. 453, 175 So. 284; McDonald v. Pearson, 114 Ala. 630, 21 So. 534; Wright v. Wright, 230 Ala. 35, 159 So. 220; Collier v. Parish, 147 Ala. 526, 41 So. 772; Fox v. Fox, 235 Ala. 338, 179 So. 237; Seals v. Weldon, 121 Ala. 319, 25 So. 1021; Rogers v. Brightmen, 189 Ala. 228, 66 So. 71; Jones v. Henderson, 228 Ala. 273, 153 So. 214; Davis v. Davis, 211 Ala. 317, 100 So. 345. Whether or not defendant was a resident of Marengo County is immaterial; generally, the bill should be filed in the county where the original decree was rendered. Code 1940, Tit. 7 § 294; cf. Fox v. Fox, supra. The bill does aver that complainant is a resident of Marengo County. The bill was filed in time and within a short time after discovery of the fraud. Equity Rule 66, Code, Tit. 7, p. 99; Code, Tit. 7, § 42. The bill shows the separation occurred in Marengo County, and the court below has jurisdiction of the bill as one seeking divorce. Code, Tit. 34, § 28. No specific amount of alimony is asked, and the bill sufficiently shows his ability to do something for complainant and the children. The amount would depend upon the report of the register.
This appeal is by the respondent in a bill in equity in the nature of a bill of review of a decree of divorce rendered in the same county and in the same court in which the present bill was brought. Demurrer was overruled.
Appellant has argued several matters which are claimed to show error in the ruling.
The first contention is raised by the third ground of demurrer, that is, in substance, that it does not allege that defendant was a resident of the county in which the present bill was filed. This ground may sufficiently raise the question of venue, though a general ground for want of equity is not alone sufficient. Kyser v. American Surety Co., 213 Ala. 614, 105 So. 689. But such a general ground does not waive another ground which duly makes the point as to venue. Hammons v. Hammons, 228 Ala. 264, 153 So. 210.
But the contention is not well sustained. While such a bill need not necessarily be filed in the county in which the decree under attack was rendered (Fox v. Fox, 235 Ala. 338, 179 So. 237), this does not mean to set aside the principle that it may also be filed in the same county in which the decree was rendered. Shrader v. Walker, 8 Ala. 244; Butler v. Butler, 11 Ala. 668; section 294, Title 7, Code of 1940.
The next contention is that the allegations of fraud are not sufficient to meet the strict rule applicable to such form of relief. Admitting the strictures of the rule so often stated, it is our opinion that the allegations of the bill are amply sufficient. Miller v. Miller, 234 Ala. 453, 175 So. 284; Id., 238 Ala. 228, 189 So. 768; Fox v. Fox, supra.
Appellant also contends that the bill shows negligence on the part of complainant and laches in filing the suit. No negligence appears, and it was filed within three years after the rendition of the decree sought to be vacated. This is sufficient by analogy to the time limit in Equity Rules Rule 66, Chancery Practice, Code of 1940, tit. 7, appendix (section 6608, Code of 1923); Heflin v. Ashford, 85 Ala. 125, 3 So. 760; Nichols v. Dill, 222 Ala. 455, 132 So. 900; Cunningham v. Wood, 224 Ala. 288, 140 So. 351. To this limit there is added the features of section 42, Title 7, Code of 1940 (section 8966, Code of 1923), where applicable. But with that we are not here concerned. That statute when applicable serves as an additional period, not a limitation. Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73 (24).
The bill was also for supplementary relief and sought a divorce, alimony and custody of the children. To this aspect of it, demurrer was interposed. We will treat the demurrer on the theories advanced in brief for appellant.
The first contention is that as a bill for divorce it does not appear from it either that defendant resides in Marengo County, or that the parties resided in that county when the separation occurred, as required by section 28, Title 34, Code of 1940, citing Pucket v. Pucket, 174 Ala. 315, 56 So. 585.
There are two good and sufficient answers to the contention. One is that if the bill for review is properly filed in Marengo County that court in the same proceeding may decree such collateral and supplementary relief as may do complete equity between the parties in respect to the subject matter (as manifested in Fox v. Fox, supra), and it would be immaterial whether a bill for such supplementary relief taken alone could properly be maintained in that county.
Moreover, the bill in substance alleges that both parties resided in Marengo County at the time of the separation. This meets the requirements of the statute as emphasized in Pucket v. Pucket, supra.
Objection to the bill is also made on the ground that it does not state the value of the land of respondent nor his ability to pay the permanent alimony which is sought.
This Court in Drew v. Drew, 226 Ala. 43, 145 So. 495, in a suit for separate maintenance observed that good pleading would seem to suggest that if the husband owned property that fact should be averred in the bill, or that he otherwise has an income. And in Jones v. Jones, 228 Ala. 178, 153 So. 203, in a similar suit, the old cases are cited to show that an allegation of "faculties" is necessary in a suit for permanent alimony, — citing Lovett v. Lovett, 11 Ala. 763, Lawrence v. Lawrence, 141 Ala. 356, 37 So. 379, and Drew v. Drew, supra.
But the averments in this respect need not be with great particularity or detail. The court will make due inquiry and ascertain these details. See 17 Amer.Jur. 463, section 588.
It is sufficient in a divorce suit also seeking permanent alimony to allege the general nature of defendant's property and where it is situated to sustain that aspect of it which seeks permanent alimony. It must not be overlooked also that earnings and earning capacity may be taken into consideration. Epps v. Epps, 218 Ala. 667, 120 So. 150.
In so far as any question raised by appellant is here concerned, we think there was no error in overruling the demurrer to the bill, and to the various aspects of it to which the demurrer was directed.
Affirmed.
GARDNER, C. J., and BOULDIN and LAWSON, JJ., concur.