De Soto Coal, Mining Development Co. v. Hill, 188 Ala. 667, 65 So. 988; Marcum v. Marcum, 260 Ala. 197, 69 So.2d 670. Appellant's petition for allowances and attorney's fee was erroneously stricken. Code 1940, Tit. 34, §§ 30, 22(1); Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866; Sims Ch.Pl. Pr., § 678; Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591; Equity Rule 56, Code, Tit. 7, App.; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Fuqua v. Fuqua, 268 Ala. 127, 104 So.2d 925. Upon application Supreme Court may award solicitor's fee for services of wife's attorneys on appeal. Mathison v. Mathison, 267 Ala. 101, 104, 100 So.2d 11. Douglas C. Martinson and Cloud Berry, Huntsville, for appellee.
Demurrer to the bill is not a denial of the allegations. Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591; 27 C.J.S., Divorce, § 208, p. 900. Alimony pendente lite is not a matter of right but one within the sound discretion of the trial judge.
The court was without authority to set the case down for hearing orally before the court on question of temporary alimony and solicitor's fee and right of occupancy of the lands. Code 1940, Tit. 34, § 30; Mancil v. Mancil, 240 Ala. 404, 199 So. 810. Wife guilty of marital misconduct forfeits alimony pendente lite. Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Ex parte Austin, 245 Ala. 22, 15 So.2d 710, 712. To entitle wife to suit money and alimony pendente lite a prima facie case must be shown in her behalf.
Relief sought by the cross-bill could be granted on the original bill and answer. Code 1940, Tit. 34, §§ 30-32; Ex parte Bragg, 241 Ala. 214, 2 So.2d 393; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Chafin v. Chafin, 254 Ala. 36, 47 So.2d 202; Wood v. Amos, 236 Ala. 477, 183 So. 639; Latimer v. Milford, 241 Ala. 147, 1 So.2d 649. Former decree of custody referred to in bill and demurrer to cross-bill, and admitted in respondent's answer, the trial court took judicial notice thereof, but appellate court cannot do so without it being certified in the record. Crosland v. First Nat. Bank, 233 Ala. 432, 172 So. 255.
Such a denial is insufficient and amounts to an admission. Prestridge v. Wallace, 155 Ala. 540, 46 So. 970; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Penney v. McCulloch, 134 Ala. 580, 33 So. 665; Gamble v. C. Aultman, 125 Ala. 372, 28 So. 30. J. B. Atkinson, Clanton, for appellee.
An allowance of alimony pendente lite and solicitor's fees grows out of the relationship of husband and wife, the legal obligation of the husband to support and maintain the wife, which continues so long as they remain husband and wife, unless forfeited by the misconduct of the wife, or special circumstances relieve the husband of such obligation. Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611. Here the alimony pendente lite and solicitor's fees were sought on the interposition by the wife of answer and cross bill and no question was raised as to the good faith of the defense or the probability of success.
If the wife has a separate estate of her own, and it is sufficient for her maintenance, she is not entitled to an award of permanent alimony. Code 1940, Tit. 34, § 31; Morgan v. Morgan, 203 Ala. 516, 84 So. 754; Gibson v. Gibson, 203 Ala. 466, 83 So. 478; Higgins v. Higgins, 222 Ala. 44, 130 So. 677; 17 Am.Jur. 467; 27 C.J.S., Divorce, § 233, page 959; 19 C.J. 258; Keezer, Mar. Div. (3d Ed.) 712; Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611. Solicitor's fees are regarded as a part of the wife's temporary alimony, allowed as such, and as being necessary for maintenance of her suit. The allowance is made to the wife as a part of her alimony, and not to or for the benefit of her solicitors. Jeter v. Jeter, 36 Ala. 391; Johnson v. Gerald, 216 Ala. 581, 113 So. 447; Mancil v. Mancil, 240 Ala. 404, 199 So. 810; Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Ex parte Taylor, 251 Ala. 387, 37 So.2d 656, 35 A.L.R. 1101.
Murray v. Murray, 238 Ala. 158, 189 So. 877; Ray v. Ray, 245 Ala. 591, 18 So.2d 273; Bailey v. Bailey, 237 Ala. 525, 187 So. 453; Pitchford v. Pitchford, 222 Ala. 612, 133 So. 718; Folmar v. Folmar, 69 Ala. 84; Wood v. Wood, 80 Ala. 254. Condonation is the willing continuance of co-habitation as man and wife and is a defense to a divorce charging cruelty. Farmer v. Farmer, 86 Ala. 322, 5 So. 434; Brown v. Brown, 219 Ala. 104, 121 So. 386. A prima facie case must be shown on wife's behalf to entitle her to temporary alimony and allowance for solicitor's fees. Ex parte Apperson, 217 Ala. 176, 115 So. 226; Mancil v. Mancil, 240 Ala. 404, 199 So. 810; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611. Award of alimony, both temporary and permanent, and solicitor's fees is based upon husband's ability to pay. Ex parte Whitehead, 179 Ala. 652, 60 So. 924; Sills v. Sills, 246 Ala. 165, 19 So.2d 521; State ex rel. Sellers v. Locke, 208 Ala. 169, 93 So. 876; Ex parte Harris, 228 Ala. 88, 152 So. 449; Phillips v. Phillips, 221 Ala. 455, 129 So. 3; Jones v. Jones, 95 Ala. 443, 11 So. 11, 18 L.R.A. 95; Folda v. Folda, 174 Ala. 286, 56 So. 533.
There is no error here. Alimony pendente lite is based on the legal obligation of the husband to support and maintain the wife and thus depends on the relationship of husband and wife. Ex parte Tranum, 255 Ala. 143, 50 So.2d 447 (1951); Ex parte Phillips, 247 Ala. 94, 22 So.2d 611 (1945). A decree of divorce a vinculo immediately puts an end to all duties and obligations necessarily dependent upon the continuance of that relationship. Ex parte Thornton, 272 Ala. 4, 127 So.2d 598 (1961).
Leo v. Leo, 280 Ala. 9, 189 So.2d 558; Sides v. Sides, 284 Ala. 39, 221 So.2d 677; Moore v. Moore, 259 Ala. 326, 66 So.2d 447. Although trial court has much statutory discretion as to alimony and property settlement in divorce proceedings, such discretion is judicial and not arbitrary, and is subject to review. Sides v. Sides, 284 Ala. 39, 221 So.2d 677; Exparte Phillips, 247 Ala. 94, 22 So.2d 611. Judgments must not be predicated on conjecture. Broadway v. Bolar, 33 Ala. App. 57, 29 So.2d 687; Goodwyn v. Union Springs Guano Co., 228 Ala. 173, 153 So. 246; Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665. Camp, Williams Spurrier, Huntsville, for appellee.