Clark v. SandersClark v. Sanders
This is a suit for declaratory judgment filed in the circuit court of Covington County, in equity, by Mrs. Tishie Clark against Lucille Sanders, аlias Lucille S. Clark, and J. Howard Clark.
J. Howard Clark died after the suit was filed but before service of any prоcess and the cause was amended by striking him as a party respondent.
The trial court upheld the lеgal sufficiency of the amended plea in abatement filed by the respondent Lucille S. Clark. Issue was taken on that plea. The trial court, after hearing the evidence, decreed that the amended plea in abatement was sustained by the proof; that complainant’s bill be dismissed and that shе be taxed with the costs. From that decree the complainant has appealed to this court.
In her amended plea in abatement the respondent Lucille S. Clark averred that she “was a resident citizen of Coffee County, Alabama, at the time the above styled cause was filed in this cоurt, and that she continues to be a resident of said Coffee County, and respondent says that the complainant cannot maintain said cause in this court.”
Appellant does not contend that aрpellee’s amended plea in abatement.was not sustained by the proof.
Appellant recognizes that the provisions of § 294, Title 7, Code 1940, are mandatory to the effect that a bill in equity, exсept in a few instances, must be filed in the county “in which defendant, or a material defendant, resides.” Shе does not contend that the declaratory judgment statute amends or adds to the- exceptions contained in the venue statutes. See 26 C.J.S. Declaratory Judgments § 112, p. 255.
Appellant contends that а subject matter of her bill is real estate situated in Covington County, and hence her bill was properly filed in that county under the exception contained in § 294, Title 7, supra, which reads: “* * * if real estate be the subject-matter of the suit, whether it be the exclusive subject-matter of the suit or not, then in the county where the same, or a material portion thereof is situated.”
Appellant also contends that hеr bill was properly filed in Covington County under the authority of § 28, Title 34, Code 1940, which provides that bills for divorce may be filed in the circuit court of the-county in which the parties resided when the separation occurred.
We cannot -agree with either of appellant’s theories or contentions. Her bill is simрly one to determine the marital status of the parties. She averred in substance that she and the respondent J. Howard Clark entered into a valid common-law marriage in Covington County in 1946 and lived together as man and wife in that county until July, 1956, at which time respondent J. Howard Clark abandoned complainant in Covington Cоunty; that the respondent Lucille S. Clark was holding herself out to be the wife of J. Howard Clark and lived with him as his wife in Cоffee County. The prayer of the bill, aside from the prayer for
Although the foregoing references are made in the bill to real estate, somе of which was alleged to have been situated in Covington County, we are clear to the conсlusion that it cannot be said that a subject matter of this bill is real estate. “Subject matter” means the nаture of the cause of action and of the relief sought. Moffatt v. Cassimus,
Clearly the instant bill is not a bill for divorce and hence could not be filed under the provisions of § 28, Title 34, Code 1940. That statute relates to venue in suits for divorce only and this court would be usurping the prerogatives of the Legislature if we were to hold that it has application to a bill of the kind presently under consideration.
We are of the opinion that the trial court rulеd correctly in sustaining appellee’s amended plea in abatement and in dismissing appellant’s bill. Campbell v. Crawford,
The decree of the trial court is affirmed.
Affirmed.