121 So. 386 | Ala. | 1929
Appellee's bill for divorce sufficiently stated the grounds upon which she relied, viz., habitual drunkenness and cruelty; that is, actual violence on her person attended with danger to her life or health.
In McMahon v. McMahon,
As for the charge of cruelty, the bill sufficiently informed appellant, defendant, of the nature and character of the offense which appellee expected to prove. Time, place, and the act of violence complained of are so alleged as to inform appellant of the case he might prepare to meet. Smedley v. Smedley,
Fault is found with the bill on the ground that it shows that after the violence complained of appellee continued to live with appellant for a considerable period of time, viz., from September 15th to October 31st; this fact being referred to as sufficiently establishing a condonation of the violence charged. This, again, depends upon circumstances. Appellee, who, as the bill alleges, is of limited education and "not capable of holding a position to make a living nor is she physically able to perform labor," was not required by law or a decent regard for the new relation with her husband which, it may be assumed, the violence to her person brought about, to walk out into the weather or seek refuge in the county house. "Condonation" in the respect here involved means the willing continuance of cohabitation, a living together in the same place, from which fact sexual intercourse may in general be presumed; but, "if it is satisfactorily established that the parties occupied separate apartments or had no access to each other, the presumption is destroyed." 19 C. J. p. 87, note. Condonation is a matter to be pleaded in defense, and unless it affirmatively appears in the bill of complaint, it will not be inferred that complainant has condoned the misconduct complained of. 19 C. J. 114, § 285. It is not considered that the bill in this case affirmatively shows condonation. *106
Upon the considerations stated the decree of the circuit court in equity overruling appellant's demurrer to appellee's bill is affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.