| Ala. | Jun 15, 1859
The real nature of a bill is to be determined rather by its substance — that is, by its allegations and object — than by the title which the pleader chooses to give it. The bill in this case is called by the complainant a bill of review. It is obvious, however, that it is not a bill of review; for that cannot be filed,,except upon the ground of error on the face of the decree, or of new matter which has arisen or been discovered since the publication of testimony in the original suit. Nor is it what is termed a supplemental bill in the nature of a bill of review, for this also is founded upon the occurrence or discovery of new facts. ' The object of the bill is to impeach a final decree for fraud; and this can only be done by an original bill filed for that purpose. Such a bill is sometimes called an original bill in the nature of a bill of review. — Story’s Equity Pl. § 426; Munsell v. Morgan, 3 Brown’s Ch. 74, 79; Mitf. Eq. Pl. 113; Edmondson v. Mosby, 4 J. J. Marsh. 497; Allen v. McLellan, 2 Jones (Pa.) 328.
In the case of Greene v. Greene, 2 Gray, 361, the supreme court of Massachusetts held, that a decree for divorce from the bonds of matrimony, rendered by a court having jurisdiction of the subject-matter and the parties, fthe defendant either appearing, or being legally summoned to defend,) cannot, although obtained by fraud and false testimony, be set aside on an original libel filed at a subsequent term. — See, however, Bishop on M. & D. §§ 697-9. But in that case, the decree which was sought to be annulled operated a dissolution of the marriage, and fixed the status of the parties. Such, as we will see, was not the effect of the decree which this complainant has
Article 6, section 13, of the constitution of this State, is in these words: “ Divorces from the bonds of matrimony shall not be granted, but in eases provided by law, by suit in chancery; and no decree for such divorce shall have effect, until the same shall be sanctioned by two-thirds of both houses of the general assembly.” This language is so plain as to leave no room for reasonable controversy; and we have no hesitation in declaring it as part of our fundamental law, that a decree for divorce from the bonds of matrimony, rendered by a chancery court in this State, has no effect as a dissolution of the marriage relation, until it has received the sanction of the legislature. — See Harrison v. Harrison, 19 Ala.
The marital relation between these parties was, then, still subsisting when the complainant filed her bill, impeaching as fraudulent the decree rendered in favor of her husband. Under these circumstances, we have no doubt that the chancery court had jurisdiction of the case made by the bill.
Section 1970 of the Code is in these words: “Pendinga suit for divorce, the court must make an allowance for the support of the wife, out of the estate of the husband, suitable to his estate and the condition in life of the parties.” The chancellor held, that this case, though not falling within the letter of the section just quoted, was embraced by its spirit and design ; and he rested his authority to make the order here complained of, upon this provision of the Code. The ground on which we jorefer to place our decision, relieves us of the necessity of expressing an opinion on this point.
According to the common law of England, as administered in the ecclesiastical courts, alimony pendente lite, and money to defray the expenses of the suit, are allowed as incidents to a suit for a divorce, whether the wife be complainant or defendant. — Bishop’s Mar. & Div. §§ 569, 574; Shelf. M. & D. 586-7; Frith v. Frith, 18 Geo. 271; Coles v. Coles, 2 Md. Ch. D. 341; Osgood v. Osgood, 2 Paige Ch., 621" court="None" date_filed="1831-10-18" href="https://app.midpage.ai/document/osgood-v-osgood-5547911?utm_source=webapp" opinion_id="5547911">2 Paige, 621. The principle is, that the wife’s right
It become important, therefore, to inquire in what cases, and under what circumstances, these allowances were made by the ecclesiastical combs. Lord Stowell, on one occasion, said: “ In suits instituted by the husband or the wife, (for I consider that fact to be indifferent,) the wife is a privileged suitor as to costs and alimony; and on the same principle that the whole property is supposed by law to be in the husband. If the wife, therefore, .is under the necessity of living apart, it is also necessary that she should be subsisted during the pendency of the suit, and that she should be enabled to procure justice by being provided with the means of defense.” — Wilson v. Wilson, 2 Hagg. Consist. R. 204.
Mr. Bishop, in his work on Marriage and Divorce, says: “When a suit is pending for a divorce, either from bed and board, or the bond of matrimony, or to declare a marriage duly solemnized void from the beginning, it is legally improper for the parties to cohabit together; and this without reference to -what may be the ultimate result of the suit. The single fact, therefore, that it is pending, is, on the principles already laid down, alone sufficient to entitle the wife, who has no sufficient property of her
Now, if, before a divorce has been consummated by receiving the legislative sanction, a bill is filed impeaching the decree for fraud, it is altogether proper, we think, that the decree should be suspended, until the application assailing it is heard. Otherwise the divorce might be confirmed by the legislature, pending a proceeding to have it set aside in a court which has the general power to annul such decrees. The power of the court to annul a decree thus confirmed is, perhaps, open to question. — See Greene v. Greene, 2 Gray, 361. It thus appears that the marriage-tie had not been dissolved when this bill was filed, and ought not to be until it is heard and disposed of. Here, then, is a litigation between husband and wife, in relation to a divorce, during the pendency of which it is legally improper for them to cohabit. Upon this gi’ound alone, according to the rule stated by Mr. Bishop, the authority of the court (independent of any statute on the subject) to allow alimony pendente Lite could be upheld. See Tayman v. Tayman, 2 Md. Ch. D. 393.
Upon the whole, our conclusion is, that the chancellor did not exceed his jurisdiction in the interlocutory decree rendered in this case. The writ of. prohibition is issued to restrain the unauthorized action or proceedings of the inferior courts; but it is never granted, except where the inferior court has exceeded its jurisdiction in the order complained of, and the relator has no other remedy to which he cap resort for his protection. — Ex parte Smith, 23 Ala. 94" court="Ala." date_filed="1853-06-15" href="https://app.midpage.ai/document/ex-parte-smith-6505108?utm_source=webapp" opinion_id="6505108">23 Ala. 94; Ex parte City Council of Montg’y, 24 Ala. 98" court="Ala." date_filed="1854-01-15" href="https://app.midpage.ai/document/ex-parte-city-council-6505224?utm_source=webapp" opinion_id="6505224">24 Ala. 98 (100); The People v. Seward, 7 Wend. 518" court="N.Y. Sup. Ct." date_filed="1832-04-19" href="https://app.midpage.ai/document/people-v-s-s-seward-5513806?utm_source=webapp" opinion_id="5513806">7 Wend. 518; Ex parte Greene & Graham, 29 Ala. 57.
The application is denied. The petitioner must pay the costs of this motion. .