| Ala. | Feb 2, 1905

ANDERSON, J.

The complainant filed her bill for alimony and counsel fees, against her husband, but sought no divorce.

A reference was ordered and had and the report of the register recommended $25.00 for attorney’s fees and $12.50 per month for the complainant. Whereupon the chancellor confirmed said report, and ordered the re*416sponclent to pay over $100.00 to the register to- pay said solicitor’s fees and the monthly payments to the complainant pending this suit, and ordered respondent to jail in default of the payment of said $100.00.

“It is firmly settled by the decisions of this court, in consonance with the decisions of the courts of other states, — although it- may 'be that the weight of authority in England and this country is opposed to the doctrine— that courts of equity have jurisdiction to grant alimony to a married woman in the nature of maintenance:, unconnected with any proceedings for divorce. — Hinds v. Hinds, 80 Ala. 225" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/hinds-v-hinds-6512496?utm_source=webapp" opinion_id="6512496">80 Ala. 225; Murray v. Murray, 84 Ala. 363" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/murray-v-murray-6513111?utm_source=webapp" opinion_id="6513111">84 Ala. 363; Brindley v. Brindley, 115 Ala. 474" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/brindley-v-brindley-6517219?utm_source=webapp" opinion_id="6517219">115 Ala. 474.

“In this state, we have no statute providing for alimony disconnected with a suit for divorce, and for independent proceedings in that behalf, we are remitted to the general principles of equity courts in the adjudication of rights between the parties. But in divorce suits, the statute does provide that ‘Pending a suit for divorce, the court, must malee an allowance' for the support of the wife out of the estate of the husband, suitable to the condition of his estate and the condition in life of the parties.” — Code 1896, § 1495 (2331.) Under the construction placed on this statute, the allowance of temporary alimony, or alimony or support pending the suit is matter not of discretion, but of right. — Edwards v. Edwards, 80 Ala. 97" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/edwards-v-edwards-6512461?utm_source=webapp" opinion_id="6512461">80 Ala. 97. Independent of statute providing otherwise, it is the generally conceded rule, that the allowance of alimony penden te lite in suits for divorce, is not a matter of absolute right, but rests in the sound discretion of the count. — 2 Am. & Eng. Ency. Law (2nd Ed.), 101. In a suit prosecuted by the wife for alimony alone, it is manifest, therefore, that, a court of equity in this state is not bound by the section of the Code above quoted, to allow it as a matter of right.

“Another well recognized principle in divorce suits, uninfluenced bv statute is, that ‘although alimony pendente lile should be allowed without an examination of the merits of the case, yet a prima facie case must be shown in behalf of the wife, and where she is the libellant or the plaintiff, it should appear that the suit is brought in good faith, and not merely for the purpose of obtain*417nig money from the husband; for if it appears that the suit is without just or reasonable foundation, or is prompted by malice or oppression towards her husband, or that the husband’s success is very apparent, no allowance should he made to the wife. — 2 Am. & Eng. Ency. Law (2nd ed.), 101.” — Brindley v. Brindley, 121 Ala. 430, 431.

The bill doubtless makes out a prima- facie- case for equitable relief, but we question the propriety of confirming this report- upon the evidence before the register when holding the reference, as the complainant failed to satisfactorily establish her allegation, but the weight of the evidence was that she left her husband’s bed and board of her own volition, and there was absolutely nothing to negative his willingness for her to return.

The complainant testified to facts, (if true) that were calculated to make her position in respondent’s home unpleasant. Also that lie told her when she left, that he hoped to not see her again until “judgment day.” Respondent denied any unkind treatment and testified that his wife was not driven off by him but went on a visit to her people. Complainant corroborated 'the respondent on her cross-examination by admitting that she told respondent’s son, Milton, the day she left, to tell his father to send for her Sunday. If she was driven off by the husband and was leaving for good, it does not stand to reason that she would he sending him a message, the very day she left, to come or send for her the following Sunday.

It appears from the record that when the evidence was taken before the register, the respondent attempted to introduce other witnsses and was informed by the register that he could not do so, “because notice had not been given to the complainant at the opening of the reference.” ' Paragraph three contained in section 743 of the Code of 1896 relating to taking evidence upon reference before registers, says; “To examine on oath, viva, voce, all witnesses produced by the parties before him, and take down such evidence in writing.” This action of the register was a practical denial to the respondent of *418his constitutional rights, and the report should not have been confirmed by the chancellor.

Conceding, however, that the complainant was entitled under the proof to an allowance, we think the amount allowed, $12.50 per month, was excessive, and thait- under no condition should the allowance to the wife exceed one-half of the husband’s net income, even in cases where he has no others dependent upon him for a support.

The undisputed evidence showed that respondent had a small farm of 113 acres and a few hundred dollars in personal property and that the place was leased for $80 per year. The complainant tried to show collusion as to the lease between respondent and his son, but her own brother and witnesses put respondent’s income at not exceeding $160.00 per year, making no allowance for taxes- and necessary improvements. Yet we find a monthly allowance to the wife, that will by the- year equal the husband’s entire income after paying the tax on the land, and after placing the rental value at the maximum price •fixed by complainant’s witnesses.

The only duly owed from the husband to the wife in cases of this character, which we have power to enforce or aid in enforcing, is that of maintenance. And in accomplishing this we feel authorized to- deal only with the income of the husband. We cannot compel him to labor and earn an income, although some authorities assert that doctrine. — 60 Am. Dec. 680 and note to Methrin v. Methrin.

The measure of the duty of the husband to provide maintenance for the wife, should be graded by his means and position in society. Maintenance not beyond the husband’s means is all that the law can enforce. — Murray v. Murray, 84 Ala. 363" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/murray-v-murray-6513111?utm_source=webapp" opinion_id="6513111">84 Ala. 363.

Alimony pendente lite, strictly speaking, is that allowance which the husband may be compelled to pay his wife to prosecute the suit for divorce or separation, or to defend and answer where the proceedings are instituted by him. But an allowance as alimony pendente lite may also be made in an action for alimony without divorce, where the wife is without means, and the husband is able to furnish them.- — 2 Am. & Eng. Ency. Law, page 99.

*419It is to be observed that this right is only to be exercised where the wife is without means. The evidence in this case shows that the wife owns 80 acres of land and some personal property. It is true the land is bringing in little, or no revenue, but she certainly has enough to support her for such time as would be reasonable for the final adjudication by the chancellor of her r'glit to equitable relief, in a style commensurate with her station ip life and former surroundings.

This case was brought here by appeal and this court in the case of Brindley v. Brindley, 115 Ala. 474" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/brindley-v-brindley-6517219?utm_source=webapp" opinion_id="6517219">115 Ala. 474, which was a.n appeal from a similar decree of the chancellor, passed on the question involved, upon the assumption that the appeal was properly taken. We are of the opinion, however, upon due consideration, that the decree of the chancellor confirming the report and ordering the respondent to pay over money and to jail in default thereof, is not such a one as justifies an appeal, and the Brindley case, supra, is explained and qualified in so far as it assumes that the appeal was properly prosecuted.

The decree rendered by the chancellor not being such a final decree, as will support an appeal, or of the class from which the statute gives the right of appeal, mcmdcuwus can be awarded by the appellate court to vacate said decree. — Bridgeport Ice Co. v. Bridgeport Land Co., 104 Ala. 276" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/bridgeport-electric--ice-co-v-bridgeport-land--improvement-co-6515808?utm_source=webapp" opinion_id="6515808">104 Ala. 276; Ex parte Freheimer, 103 Ala. 154" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/ex-parte-fechheimer-6515679?utm_source=webapp" opinion_id="6515679">103 Ala. 154. The authorities seem to hold, however, that though it be a decree or order from which no appeal can be liad, mandamus will not be granted, if the matter complained of can be remedied by a final decree. It is true the chancellor can set aside or modify this decree upon a final hearing, but, if before that is done this respondent is compelled to pay money to the register who pays it over to the complainant. or the respondent is sent to jail in default of payment, a final decree subsea uentlv rendered setting aside the decree of confirmation and the order of imprisonment, could not put the respondent in statu quo-. •

While this case was brought here by appeal, and there has been no formal petition for mandarines, stating the facts upon which relief is asked, we have an authentic transcript of the record of the proceedings, and the re*420spondent spread a motion on the docket, before the case was submitted, asking for a mmdamus, which is sufficient to authorize us to entertain a motion for same. — Ex parte F. Mfg. Co., 103 Ala. 415" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/ex-parte-tower-manufacturing-co-6515720?utm_source=webapp" opinion_id="6515720">103 Ala. 415.

It is ordered and adjudged, that a rule nisi issue to- the chancellor of the Northeastern Chancery Division, requiring him to appear on Monday the 10th day of April, 1905, and show cause why a peremptory mmdamus shall not issue, commanding him to vacate- said decree of confirmation.

McClellan, C. J., Tyson and Simpson, JJ., concurring.