Opinion
6 Div. 655.
December 11, 1930.
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
R. D. Coffman and Walter S. Smith, both of Birmingham, for appellant.
Adultery as a ground of divorce must be specifically and positively alleged, and with such certainty as to time, place, and person that defendant may know the charge he is called upon to meet. Lawrence v. Lawrence, 141 Ala. 356, 37 So. 379; 19 C. J. 109, §§ 273, 274, note 32; Hall v. State, 100 Ala. 86, 14 So. 867; Alsobrooks v. State, 52 Ala. 24. The allegations of paragraph 4 of the bill are insufficient, in that the particular facts relied upon as grounds upon which the alleged reasonable apprehension of violence is based are not alleged or set forth in detail. Tutwiler v. Tutwiler, 205 Ala. 283, 87 So. 852; McMahon v. McMahon, 170 Ala. 338, 54 So. 165; Wood v. Wood, 80 Ala. 254; Smedley v. Smedley, 30 Ala. 714: Reese v. Reese, 23 Ala. 785; Hill v. Hill, 10 Ala. 527; 19 C. J. 110, §§ 276, 277.
W. H. McGowen and G. R. Hubbard, both of Birmingham, for appellee.
The statement of facts in the bill of complaint follows the statute; more particularity is not necessary.
When a divorce is sought by the wife against her husband under section 7409 of the Code of 1923, the bill of complaint need not go into the details with particularity, but it should, at least, give the nature and character of the acts or conduct relied upon to establish the charge. McMahon v. McMahon, 170 Ala. 338, 54 So. 165, and cases there cited. Tutwiler v. Tutwiler, 205 Ala. 283, 87 So. 852. The trial court erred in not sustaining the respondent's demurrer to paragraph 4 of the bill of complaint.
The case of Ratcliff v. Ratcliff, 209 Ala. 377, 96 So. 422, is not opposed to this ruling. It recognized the necessity for such an averment, but applied the doctrine of error without injury, as the bill was answered and all the facts and circumstances were gone into at the trial. The court did not hold that the case would not be reversed had the appeal been upon the ruling on demurrer before answer and proof taken, as was done in this case.
Paragraph 3, charging adultery, seems to have been sufficient. Farley v. Farley, 94 Ala. 501, 10 So. 646, 33 Am. St. Rep. 141, Holston v. Holston, 23 Ala. 777.
For the error above designated, the decree of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
All the Justices concur.