Mims v. Mims

33 Ala. 98 | Ala. | 1858

NICE, C. J.

—The bill was filed in October, 1855, in the name of the wife, by her next friend, against her husband, for alimony. It appears that she was insane when the bill was filed, and had been insane for several years-before that time. The first question to be considered is, whether the respondent, who in his answer insisted she was not insane, who took several depositions, who did not demur to the bill, and failed to move the court below to have the bill taken off the file, is now, after a decree on a hearing on pleadings and proof by the chaneelloi’, entitled to reverse that decree upon the single ground, that the wife sued by next friend, and not by committee.

The fifteenth of our 1’evised rules for the regulation of the practice in chancery is in the following words :

“ All bills and petitions filed by married women, without their husbands, whether relating to their separate estate or not, shall be exhibited by next friend.”—See 24 Ala., p. IV, rule 15.

If the wife had been sane, it is clear that, under that rule, her bill might have been exhibited by next friend. And whatever effect her insanity might have had, in England, upon her right to exhibit her bill in that mode, we are persuaded it cannot, in this State, have the effect to deprive her of that right. She has no estate, no guardian, no committee. She is afflicted, helpless, and in a lunatic asylum in a sister State, where she was placed by some of her friends, after the cruelty of her husband alleged in her bill. She seeks nothing but alimony. Her next friend can do nothing to her prejudice, but is as completely under the direction and control of the chancellor, as a committee appointed by the chancellor would have been.—Bolling v. Turner, 6 Rand. 584; Isaacs v. Boyd, 5 Porter, 388 ; Longnecker v. Greenwade, 5 Dana, 516. The chancellor’s authority to protect the husband and bind the wife, is as complete when such a bill is exhibited by next friend, as when exhibited by committee. His jurisdiction is not affected by the substitution of either of these modes for the other. 'Whether it is to be filed in the one mode or the other, is, at most, a mere question of practice; and although, in England, the practice may be to have such a bill exhibited by committee, and although it may there be “ inconvenient to deviate from the regular practice; ” yet it is probable that, even there, circumstances may exist which justify a deviation from that practice ; and it is certain that, here, circumstances will justify a deviation from it.—Gillbee v. Gill-bee, 1 Phillips’ Ch. R. 121; Eyre v. Wake, 4 Vesey, 75 ; Machin v. Salkeld, 2 Dick. 634; Shelford’s Law of Lunatics, 445 ; Rebecca Owing’s case, 1 Bland’s Ch. R. 290; Colegate D. Owing’s estate, 1 Bland’s Ch. R. 370; 2 Story’s Eq. Jur. §§ 1334, 1336, 1362, 1365, and notes.

The conclusion attained by us is supported by Carr v. Boyce, 13 Ired. Eq. R. 102, where it was held, that a bill may be filed by the next friend, on behalf of a person of weak mind, and the fit subject for a commission of lunacy, his property being too small to bear the expense of a commission.—3 Chitty’sEq. Dig. 2451, § 15.

In Kavanaugh v. Thompson, 16 Ala. R. 817, it was held, that administrators could not complaiu that a decree, regular in form, was rendered by the orphans’ court (a court of limited jurisdiction) against them, in favor of infant distributees, without the appointment of guardians ad litem, although the failure to appoint them was an error for which the decree could have been reversed at the instance and for the benefit of the infants. So, here, the husband as respondent, after having denied in his answer the insanity of his wife, and treated here as sane in the proceedings in the cause, and gone to trial on pleadings and proof, without moving to take the bill off the file, ought not now to be permitted to reverse the decree agaiust him, on the mere ground that, as she was insane, her bill should have been filed by committee.

[2.] Adultery, committed by the wife when insane, is no bar to her claim for alimony, if that be the only objection to her claim.—Wray v. Wray, 19 Ala. R. 522. The proof convinces us, that the adultery of the wife, shown in this case, was committed by her when insane.

[3.] The cruelty and conduct of the husband, averred in the bill and established by the evidence, entitles the wife to alimony.—Glover v. Glover, 16 Ala. R. 440; Hanberry v. Hanberry, 29 Ala. 719.

We are satisfied there is no error in the decree of the chancellor, and affirm it, at the costs of the appellant.