133 Ala. 381 | Ala. | 1901
The bill in this cause was filed by the husband against the wife for a divorce upon the ground of voluntary abandonment. It contains all the necessary statutory allegations.- — Code, §§ 1485, 1492.
After decree pro confesso the complainant, in accordance with the provisions of the act of the General Assembly approved December 14,1898, (Acts, 1898-99, p. 118), submitted his cause for decree in vacation, upon the
While it is true, that such suits are regarded as of a tripartite character — a triangular proceeding sui generis — wherein the public, or government, occupies in effect the position of a third party, and the court is bound to act for the public in such cases (Powell v. Powell, 80 Ala. 595; Ribet v. Ribet, 39 Ala. 348), and may to that end, ex mero mota, at any time before final decree, direct an inquiry to ascertain the fact of the existence of a defense (Smith v. Smith, 4 Paige, 432; 7 Ency. Pl. & Pr., 88), we apprehend, in making the inquiry, the rights of the complainant are not to be abridged or disregarded, but must be respected. When an inquiry of this sort is instituted by the chancellor, involving as it necessarily does the right of the complainant to maintain his suit, there is no reason why the complainant should be precluded or debarred of the rights which he has, of having notice of the inquiry as well as the right to cross-examine the witnesses Avho may be examined by the court and to introduce evidence in his OAvn behalf. The fact that the issue is made with him by the court instead of by the respondent, does not and cannot deprive him of his right of trial accord-' ing to the forms of law, the right to know the issue he is expected to meet, to cross-examine the witnesses Avho may be called to testify against him upon the issue, and-
Reversed and remanded.