Weems v. Weems

43 So. 2d 397 | Ala. | 1949

The allegations of the bill do not state a ground for divorce within the terms of the statute, and the bill was subject to the demurrer. Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Code 1940, Tit. 34, § 22. Where the judgment falls short of being a finding and adjudication of the court, complete and certain, but is in effect a memorandum which indicates no more than that judgment was rendered, it cannot be sustained as the final consideration and determination of the court, and will not support an appeal. Plunkett v. Denby, 197 Ala. 262, 72 So. 525; Jasper Mercantile Co. v. O'Rear, 112 Ala. 247, 20 So. 583. Any conduct on the part of the husband which furnishes reasonable apprehension that continuance of cohabitation would be attended with bodily harm to the wife, is legal cruelty to her. Campbell v. Campbell, 252 Ala. 487, 41 So.2d 185; Harris v. Harris,230 Ala. 508, 162 So. 102; Carr v. Carr, 171 Ala. 600, 55 So. 96; Smedley v. Smedley, 30 Ala. 714; Folmar v. Folmar, 69 Ala. 84; Wood v. Wood, 80 Ala. 254.

This is an appeal from what is thought to be a decree on demurrer to a bill in equity by the appellee against the appellant praying for a divorce.

Appellee makes the point that the decree is not sufficient to sustain an appeal because it is not an adjudication of the court. It is in the following language: "This cause being submitted in term time for decree on demurrer and the court having considered same, is of the opinion the demurrer is not well taken and same is hereby overruled and respondent allowed thirty days in which to file answer, and respondent excepts to the ruling of the court."

We have a long line of cases in this State, the effect of which is to hold that such is not a judgment or decree but is merely expressive of the opinion of the court. Thomas v. White,244 Ala. 128, 12 So.2d 567; Chambers v. Morris, 144 Ala. 626,39 So. 375; Tallassee Falls Mfg. Co. v. Western Railway of Alabama, 128 Ala. 167, 29 So. 203; Hereford v. Combs, 126 Ala. 369,28 So. 582; Bessemer Land Improvement Co. v. DuBose,125 Ala. 442, 28 So. 380; Alabama National Bank v. Hunt, 125 Ala. 512,28 So. 488; Cartlidge v. Stone, 124 Ala. 596, 26 So. 918; McDonald v. Alabama Midland Railway, 123 Ala. 227, 26 So. 165; Bell v. Otts, 101 Ala. 186, 13 So. 43, 46 Am.St.Rep. 117.

We think, however, that it will not be out of place for us to express an opinion with reference to the sufficiency of the bill to withstand the demurrer interposed. The allegations of the bill on which the relief is sought are contained in the fifth paragraph thereof, which will be set out in the report of the case. It is our view that those allegations are sufficient to show cruelty, as defined in section 22, Title 34, Code, as amended. Campbell v. Campbell, Ala.Sup., 41 So.2d 185; Harris v. Harris, 230 Ala. 508, 162 So. 102; Farmer v. Farmer, 86 Ala. 322,5 So. 434.

But since there is no decree of the lower court sufficient to support the appeal, it is necessary for us to dismiss it.

The appeal is dismissed, and appellant allowed thirty days in which to answer the bill.

Appeal dismissed.

BROWN, LAWSON and STAKELY, JJ., concur.