27 Ala. 387 | Ala. | 1855
In February, 1854, Mrs. King filed her bill in the Chancery Court of the 13th District of the Middle Chancery Division, against her husband, for a divorce a vin-culo, and for an allowance out of his estate, upon the ground that he had committed actual violence on her person, attended with danger to her life, or health, &c.; and the defendant immediately filed his answer to the bill. At the May term, 1854, of said court, on the petition of the complainant, an order was made by Chancellor Clark, ‘‘'that the defendant pay to the complainant, for her support and maintenance, until otherwise ordered by this court, the sum of five hundred dollars per annum, to be paid in quarterly payments ; the first payment to be made on the 15th day of May, 1854, and so on, a payment every three months”, &c. “ And that the defendant, without delay, pay into the hands of the solicitors of the complainant the sum of three hundred dollars, two hundred dollars of which they will retain for their services, and one hundred dollars of which they will apply to the defraying the necessary expenses of the preparation of this cause for hearing on behalf of the complainant,” &c.
At the Winter term, 1854, of said court, the cause was submitted for a final decree, upon the bill, answer and proof, to Chancellor Walker, who pronounced and filed a final decree granting to complainant a divorce a vinculo, and an allowance out of the estate of the defendant, and ordering a reference to the register to ascertain and report the value of the estate of the defendant, &c. One part of this decree is in these words, — “ It is ordered that this case be retained in court for further orders.”
Before any report was made, the defendant, in February, 1855, took an appeal from said decree of Chancellor Walker to this court, and said appeal is still pending.
At the May term, 1855, of said Chancery Court, the complainant presented to Chancellor Clark her petition, stating
An application is now made by complainant to this court for a mandamus, to compel Chancellor Clark to make such order as was prayed for by said last-named petition; and notice of this application has been duly served on him, and on the solicitors of the defendant.
There is nothing in the decree of Chancellor Walker, which ousted said Chancery Court of its jurisdiction to grant an order to secure the prompt payment of the quarterly allowances until the appeal taken by the defendant shall be determined, and until the final action shall be had upon the report of the register and the litigation in the cause shall be completely closed. The jurisdiction of that court in the case is as full now as it ever was, except as to the grant of a divorce a viñado and the allowance out of the defendant’s estate, as permanent alimony, expressly decreed by Chancellor Walker. Its jurisdiction as to all such orders, as are prayed for by the petition of complainant, was as complete when that petition was presented as it was before Chancellor Walker made his decree. — Lynde v. Lynde, 4 Sandf. Ch. R.
Chancellor Clark should have granted the order to secure the prompt payment to complainant of the quarterly allowances, as prayed for in her petition ; and he should have also made an order, requiring the defendant to pay to the solicitors of complainant such sum as may be ascertained to be a reasonable compensation for their services already rendered in the cause and not paid for, and for their services in defending the appeal which has been taken by the defendant. And as he has refused to do so, and has had notice of the present application, and as the nature of the case is peculiar, and the necessity for prompt action apparent, a peremptory mandamus must issue to him — the Chancellor of the Middle Division and presiding over the Chancery Court of the 13th Chancery District, — commanding him to vacate the order made by him at its May term, 1855, denying the application made by complainant’s petition presented to him at that term, and to make such order thereon as we have hereinabove indicated to be the proper order on said petition.
The general rule, that a mandamus will not be allowed when the party has another remedy, must be understood to relate to a specific remedy, which will place the party in the same situation as he was before the act complained of, — a specific and adequate remedy. — Etheridge v. Hall, 7 Por. 47.
The wife has a right to a support during the litigation, and also to such sum as is necessary to procure solicitors to conduct her suit with her husband. When this right is denied by the chancellor, pending the litigation, and before permanent alimony is finally set apart to her, there is no adequate and specific remedy for her, except the writ of mandamus. There is an essential difference between a case of peculiar nature and pressing necessity, like this, and other cases to be found in our reports in which we have refused .to allow a mandamus; such as Ex parte Rowland, 26 Ala. R. 133.
Let a mandamus issue, in conformity with our views here-inabove expressed. William King, the husband of the petitioner, must pay the costs of this application.
