DocketNumber： 6 Div. 31.
Citation Numbers： 98 So. 813, 210 Ala. 550, 1924 Ala. LEXIS 26
Judges： Anderson, Bouldin, Somerville, Thomas
Filed Date： 1/17/1924
Status： Precedential
Modified Date： 10/19/2024
The bill is in the nature of a bill of review, filed more than two years after rendition of the final decree sought to be set aside for fraud (Sims v. Riggins,
Leave of the court to file the amended bill was had, as a matter of precaution, though this is not necessary for the filing of a bill in the nature of a bill of review, as was the instant bill. Clements v. Clements,
The original bill and decree were for divorce. The ground therefor was that respondent was "an habitual drunkard." That pleading is signed by complainant's attorney, and the affidavit of nonresidence is:
"The State of Alabama, Jefferson County.
"Circuit Court, Tenth Judicial Circuit of Alabama, in Equity.
"Edwin B. Watters, Complainant, v. Elsa F. Watters, Defendant.
"Personally appeared before me Hunter Armstrong, register of the circuit court, Tenth judicial circuit of Alabama, H. W. Phillips, solicitor for complainant, who, being duly sworn, deposes and says that he is informed and verily believes that Elsa F. Watters, the defendant in the above stated cause, is a nonresident of Alabama, and whose residence is New York City, state of New York, and that said defendant is in the belief of affiant over twenty-one years of age. H. W. Phillips.
"Sworn to and subscribed before me this 27th day of February, 1920.
"Hunter Armstrong, Register."
It is alleged in the bill, as amended, that the "order of publication" recited that it was on "affidavit * * * of H. W. Phillips, as agent of the complainant in that case, giving the address of said Mrs. Elsa F. Watters as New York City, state of New York," and that a "decree pro confesso was taken"; that the affidavit of nonmilitary service which was filed recited that W. E. Howard, complainant, makes oath and that the same is signed by said Howard; that *Page 551 the decree granted recited that the submission was "upon the bill of complaint, decree pro confesso, nonmilitary affidavit, and testimony as noted by the register."
The bill further avers that the "exact address" of respondent (in original suit) was known to the said Edwin B. Watters, the complainant therein (respondent herein), at the time of filing of the suit; that she never received any notice by registered mail or otherwise of the filing of said suit; that she was not guilty of the things charged against her; that the affidavit of nonresidence is not made in the manner required by law; and that there was failure of compliance with Acts 1919, p. 557, in failing to give her "post office address" or to aver that the same was "unknown" and could not "be ascertained after reasonable effort." Code 1907, vol. 2, chancery rule 22, p. 1535; Gill v. More,
The fact of agency is not recited in the affidavit, nor is the authority of said Phillips to act in the premises sufficiently shown by the record. Code 1907, vol. 2, chancery rule 22, p. 1535; Birmingham Realty Co. v. Barron,
To support a decree against a nonresident defendant on publication only, the statutes and rules of practice must be strictly observed, and the facts showing a compliance must appear by the record. Paulling's Adm'rs v. Creagh's Adm'rs,
The decree of the circuit court, in equity, is affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.