Golden v. Golden , 102 Ala. 353 ( 1893 )

COLEMAN, J.

The appellant Patrick Golden was divorced from his wife by a decree of the chancery court of Mobile county rendered upon decree pro confesso, and proof of the averments of the bill. At a subsequent term of the court, his wife, Mary Golden, filed the present bill, seeking to have the decree in favor of Patrick Golden set aside and annulled, and prayed for alimony. The chancery court refused to annul the decree. by which the husband was divorced, but granted alimony. Prom this decree Patrick Golden, the husband, appealed. The decree of the chancery court allowing alimony to the wife is assigned as error. Appellee made a cross-assignment of error. There is. but one transcript and no cross-appeal The appellant has not joined in the cross-assignment of error, and his consent that appellee may assign cross-errors is not endorsed on the transcript, and no where appears in the record. The appellee is not within the rule, and we .can not'eonsider her assignments of error. — Code, p. 800, Rule 3. -

In the case of John Downey v. Sarah Downey, 98 Ala. 373, after full consideration of the question this court held : “Thatwhen an absolute divorce has been decreed at the suit of the husband, the wife can not afterwards maintain a suit for alimony. ’ ’

The complainant alleges in her bill, that she was not served with a subpoena in the case of Patrick Golden against Mary Golden, and had no notice of the pendency of that suit until long after the decree of divorce had been granted, that during the pendency of that suit, she was imprisoned at the instigation of her husband and kept in duress until he had succeeded in obtaining the decree, and, that she had no opportunity to defend or set up a claim for alimony. We have no doubt of the right of the plaintiff to file the present bill, and upon proper proof obtain relief. In the case of Dunklin v. Wilson, 64 Ala. 162, this court, following other adjudications, held that a party was not concluded by a judgment or decree of which he had no notice or knowledge, actual or constructive, but where the proceedings appear on their face to be regular, giving the court jurisdiction of the person, in order to obtain relief in equity, it was necessary “to aver and prove that in fact he was not notified of the proceedings, and that he had a good and meritorious defense. Want of notice or knowledge is not enough. He must go further and show that he has a good defense, and in what that defense consists.” Complainant in her bill does not seek a divorce from her husband, neither does she deny as true the facts upon which her husband obtained a decree of divorce, nor refer to the facts therein averred. She does, however, show in her bill a right to alimony, and a decree against her which so long as it remains in force concludes her from asserting that right, and the invalidity of the decree for want of jurisdiction of her person, and her imprisonment at the instigation of her husband, during the pendency of that suit. This is a meritorious defense or claim within the rule. The error of the court under the evidence is not so much in decreeing alimony to the wife, as in granting alimony without first setting aside the decree of divorce.

The court, if satisfied with the proof, should have''set aside the decree of divorce, and in this case ordered ' the present bill to stand as an application for alimony under the original bill of the husband. By consent the evidence taken on the original bill could be used, but' if objected to, evidence must be retaken to sustain tlie bill for divorce. It would be unsafe and oppressive to allow a husband to obtain a decree of divorce from Ms wife, without notice to her, or under circumstances brought about by his own acts which deprived her of the opportunity to be heard, and then plead such decree in bar of her claim to alimony. We express no opinon as to the effect of the evidence. The appellant being the husband will pay the cost of appeal.

Reversed and remanded.