93 So. 457 | Ala. | 1922
Appellant filed this bill against the appellee seeking divorce upon the ground of adultery and cruelty. The cause was heard before the court on oral testimony, and the final decree was rendered against the complainant dismissing her bill; and from this decree the appeal is prosecuted.
There was no note of testimony, and counsel for appellant largely rest their contention for reversal of this cause upon the lack of such note of testimony, as required by chancery rule 75, as construed by the previous decisions of this court. Brassell v. Brassell,
The answer specifically denied and contradicted in all material respects the averments of the bill, and required strict proof of the allegations set up as grounds for divorce. This placed upon the complainant the burden of sustaining by proof the allegations of her bill sufficient to overcome the contradictions of the answer. Scott, Adm'r, v. Brassell,
"An unsworn answer when it contradicts the averments of the bill, is mere pleading, and is entitled to no more weight as evidence than the bill, but it is required still, that the allegations of the bill be sustained by proof sufficient to overcome the contradictions of the answer."
Under such circumstance the proper decree to be rendered is one dismissing the bill.
Rule 75, therefore, as construed by this court, and as applicable to the instant case, *534 leaves the submission of appellant's cause as upon bill and answer, and the decree dismissing the bill will therefore be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.