6 Div. 131. | Ala. | Feb 3, 1921
Appellant having, after personal service of appellee's bill for divorce and alimony, suffered a decree pro confesso, the court ordered a reference for the ascertainment of proper alimony. Upon the coming in of the register's report the court made a decree awarding to appellee a divorce and alimony according to the report. This decree was entered March 23, 1918. In October, 1918, appellant filed his petition for leave to file a bill of review, seeking to vacate and annul the decree of March 23, 1918, in toto. The ground alleged for the proposed review was that appellant had had no notice of any of the proceedings subsequent to the decree pro confesso; and the record of the proceeding for divorce and alimony were found to sustain appellant's contention in respect of notice. A defendant against whom a decree pro confesso is taken can appear and contest a decree on the merits of the bill, or may appear before the register on a reference. Code, § 3166. But this does not mean that at every step the court must perfect a new service. Appellant was in contempt, and, but for the statute, had no right to be heard, and of course was not entitled to further notice. Mussina v. Bartlett, 8 Port. 277" date_filed="1838-06-15" court="Ala." case_name="Mussina v. Bartlett">8 Port. 277. His privileges under the statute ended with the prescription of the statute, and the liabilities incurred by reason of neglect and perversity were not further extended. Thornton v. Neal,
November 25, 1919, the court made a decree vacating the decree of March 23, 1918, in so far as that decree purported to establish appellee's right to alimony, and still later, June 14, 1920, in response to appellee's formal motion, the court, being of opinion that "it would not be just or lawful to deprive the complainant of her right to alimony," decreed a reference to ascertain proper alimony, and ordered the decree of November 25, 1919, to be "held up for a final decree in the matter after alimony has been determined." This last decree is assigned for error, with an alternative motion for a writ of mandamus ordering a vacation of the decree in the event it shall be determined that such decree is not appealable.
On this appeal we cannot, of course, consider wherein any order or decree of the court operated to the prejudice of appellee, nor can appellant be heard to complain that a decree has been made purporting to set aside so much of the decree of November 25, 1919, as did establish appellee's right to alimony. Appellant's contention takes several turns, but all of them lead at last back to this, that the decree of the date last mentioned was void as to alimony, and that in other respects the court had no right to disturb it. We have indicated our consideration of both branches of this proposition: On the authorities cited the first is wholly untenable; of the second, whether tenable or not, appellant cannot complain. It follows that no error has been committed of which appellant can complain.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.