10 So. 2d 664 | Ala. | 1942
This appeal is by the respondent in a bill in equity in the nature of a bill of review of a decree of divorce rendered in the same county and in the same court in which the present bill was brought. Demurrer was overruled.
Appellant has argued several matters which are claimed to show error in the ruling.
The first contention is raised by the third ground of demurrer, that is, in substance, that it does not allege that defendant was a resident of the county in which the present bill was filed. This ground may sufficiently raise the question of venue, though a general ground for want of equity is not alone sufficient. Kyser v. *491
American Surety Co.,
But the contention is not well sustained. While such a bill need not necessarily be filed in the county in which the decree under attack was rendered (Fox v. Fox,
The next contention is that the allegations of fraud are not sufficient to meet the strict rule applicable to such form of relief. Admitting the strictures of the rule so often stated, it is our opinion that the allegations of the bill are amply sufficient. Miller v. Miller,
Appellant also contends that the bill shows negligence on the part of complainant and laches in filing the suit. No negligence appears, and it was filed within three years after the rendition of the decree sought to be vacated. This is sufficient by analogy to the time limit in Equity Rules Rule 66, Chancery Practice, Code of 1940, tit. 7, appendix (section 6608, Code of 1923); Heflin v. Ashford,
The bill was also for supplementary relief and sought a divorce, alimony and custody of the children. To this aspect of it, demurrer was interposed. We will treat the demurrer on the theories advanced in brief for appellant.
The first contention is that as a bill for divorce it does not appear from it either that defendant resides in Marengo County, or that the parties resided in that county when the separation occurred, as required by section 28, Title 34, Code of 1940, citing Pucket v. Pucket,
There are two good and sufficient answers to the contention. One is that if the bill for review is properly filed in Marengo County that court in the same proceeding may decree such collateral and supplementary relief as may do complete equity between the parties in respect to the subject matter (as manifested in Fox v. Fox, supra), and it would be immaterial whether a bill for such supplementary relief taken alone could properly be maintained in that county.
Moreover, the bill in substance alleges that both parties resided in Marengo County at the time of the separation. This meets the requirements of the statute as emphasized in Pucket v. Pucket, supra.
Objection to the bill is also made on the ground that it does not state the value of the land of respondent nor his ability to pay the permanent alimony which is sought.
This Court in Drew v. Drew,
But the averments in this respect need not be with great particularity or detail. The court will make due inquiry and ascertain these details. See 17 Amer.Jur. 463, section 588.
It is sufficient in a divorce suit also seeking permanent alimony to allege the general nature of defendant's property and where it is situated to sustain that aspect of it which seeks permanent alimony. It must not be overlooked also that earnings and earning capacity may be taken into consideration. Epps v. Epps,
In so far as any question raised by appellant is here concerned, we think there was no error in overruling the demurrer to the bill, and to the various aspects of it to which the demurrer was directed.
Affirmed.
GARDNER, C. J., and BOULDIN and LAWSON, JJ., concur. *492
