Campbell v. Campbell , 242 Ala. 141 ( 1941 )

Based upon the theory that the right to sue for a divorce is strictly personal to the spouse aggrieved by the acts or conduct of the other, and that there are no marital offenses, which of themselves work a dissolution of the marital relation or which may not be condoned, the decided weight of authority is to the effect that, in the absence of a statute so authorizing, a suit for divorce cannot be prosecuted on behalf of an insane person at the instance of his or her guardian or next friend. 17 Amer.Jur. 290; 70 A.L.R. 964.

The majority opinion appears to recognize the foregoing established rule. But the conclusion is that our general statutory provisions as to suits by insane persons should suffice. I cannot agree. In those few jurisdictions where such suits are recognized (70 A.L.R. 964), there are statutes granting such authority in divorce suits. Illustrative is the State of Massachusetts where is the following statutory provision in the chapter of the code (Annotated Laws of Mass. c. 208, Vol. 6 § 7), devoted to the subject of divorce, and under the title "libels for divorce": "§ 7 Libel to be signed. — The libel shall be signed by the libellant, if of sound mind and of legal age to consent to marriage; otherwise, it may be signed by the guardian of the libellant or by a person admitted by the court to prosecute the libel as his next friend." The holding of the Massachusetts Court in Cowan v. Cowan,139 Mass. 377, 1 N.E. 152, authorizing the suit, is rested upon this statute. The English cases are also rested upon like statutes. I can find no authority which gives application of the general statutes relating to actions by insane persons to divorce suits, and I am persuaded none exist. We have no such statute as does the State of Massachusetts and the other few jurisdictions authorizing such suits.

In the absence of a statute giving such authority in divorce actions I am persuaded such suits are not maintainable, and feel constrained to respectfully dissent.