132 So. 897 | Ala. | 1931
Appellee filed her bill in the nature of a bill of review charging — or having in view to charge — that appellant had procured a decree of divorce from her by fraud. Appellant's demurrer was overruled. Hence this appeal.
Appellee's bill is substantially defective in two respects. In the first place, the bill in the original cause, the bill for divorce, averred that the defendant in that cause, complainant and appellee in this, "is a nonresident of the State of Alabama, and whose last known address is Texas, a more definite address being unknown to your complainant at this time, and cannot be ascertained after reasonable effort." This averment was supported by the affidavit of the attorney for complainant in that cause and, along with the order of publication according to the statute, gave the court warrant to proceed to final decree in the absence of complainant in this cause. Parker v. Cowan,
In the second place, the bill here does not deny that defendant in this cause, complainant in the original cause, had good ground for divorce — the cause alleged in the original bill. The burden of averment and proof as to that rests upon complainant in this cause, for, if complainant in the original cause had on the facts good ground for divorce, it would serve no purpose of justice or equity to set aside the decree. Crafts v. Dexter,
The demurrer to complainant's bill in this cause was well taken. The decree overruling it is reversed.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.