99 So. 185 | Ala. | 1924
Lead Opinion
The appellee moves to dismiss the appeal because the same was not made returnable by the register as fixed by section 2870 of the Code of 1907. It is sufficient to say that the law fixes the return, and an error of the register in designating a different time does not afford a ground for dismissing the appeal. Capehart v. Granite Mills Co.,
We also think that the decree appealed from is such a one as will support an appeal under the statute. The original decree was kept open, and was therefore subject to modification upon petition and proper showing, and the denial of the appellant's motion, in effect, gave finality not only to the ruling upon the petition, but to the original decree sought to be modified. This decree is therefore different from the one considered in the case of Brady v. Brady,
For previous reports of this cause see
It is also well settled that modification of the decree can only be ordered on proof of change of condition as the decree is final as to the conditions existing at the time as existing conditions are conclusively presumed to have been considered upon the rendition of the decree. Schouler on Marriage
Divorce, page 1993 and many cases under citation 18. While the decree in the present case is silent as to any agreement of *9
the parties as to the alimony the appellee has attempted to set up one anterior thereto. The authorities are not entirely harmonious on the effect to be given agreements even when referred to in the decree, but we are disposed to follow that line, especially when the agreement is not incorporated in or referred to in the decree, which hold that the power of the court to change a decree granting alimony upon the remarriage of the divorced wife is not affected by the fact that the decree was based on an agreement of the parties as to the amount of the alimony. Southworth v. Treadwell,
The remarriage of the wife does not, however, ipso facto release the husband of any installments due or accrued prior to her second marriage or between said time and the granting of the order of modification or as of the time when it should have been granted if erroneously refused or when the order is delayed by an unsuccessful appeal by the wife. Franck v. Franck,
The decree of the circuit court is reversed, one is here rendered granting the relief except as above indicated, and the cause is remanded in order that the trial court may make the proper orders in conformity with this opinion, and for the payment of the sum due the appellee. Costs of this appeal to be taxed to appellee, and all cost of the court below to be borne by the appellant.
Reversed, rendered, and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.
Addendum
The appellant had to appeal this case in order to correct an erroneous decree against him, so we taxed the cost of said appeal to the appellee. As to all other costs, the petition for a modification of the existing decree was for the benefit of the appellant, who sought to cancel the entire amount of the unpaid alimony, and we thought and still think that said cost should be paid by him.
Appellee has suggested, upon rehearing, that this appeal should be dismissed because the appeal bond is not indorsed approved by the register, a point which should have been made before the case was submitted, and if then made the appeal would not have been dismissed. Section 2886 of the Code of 1907. The bond is a good common-law obligation, even if the approval was essential to make it a statutory bond. The appellee also suggested that in ascertaining the amount to be allowed her all of the indebtedness should be considered rather than the installment of the year of remarriage, Should we pursue this method the appellee would not be the gainer, for if we considered the whole amount the proportion allowed the *10 appellee would have to be based on the time period of maturity of the last one.
The opinion is corrected and the decree modified as above indicated, and the application for rehearing is overruled.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.