Ex Parte Wood

This is a petition by O. C. Wood for writ of mandamus to review a decree of the circuit court, in equity, confirming a report of the register fixing alimony pendente lite for the wife at $12 per week and fixing her solicitor's fee at $50.

It appears from the petition and answer of respondent that O. C. Wood and Maud Wood were lawfully married; they have four children. He filed a bill for divorce against her on the ground of adultery, and she filed an answer in the nature of a cross-bill, denying the adultery charge and seeking a divorce from him on the ground of cruelty and for alimony pendente lite and permanent alimony, and for solicitor's fee for representing her in the cause; and he filed an answer denying the cruelty charge. The court ordered a reference to fix the amount of alimony for the wife, pending the suit, and the amount of the solicitor's fee for the wife's attorneys for representing her in the cause. The register, by the report, fixed $12 per week alimony pendente lite and $50 solicitor's fee. The report was by decree of the court confirmed.

It appears that the bill of complaint, answer and cross-bill, and answer to the cross-bill, were all filed in good faith, and that the complainant and cross-respondent were lawfully married. This being true, the wife would be entitled to reasonable alimony pendente lite, and a reasonable solicitor's fee for representing her in the cause. Ex parte Eubank,206 Ala. 8, 89 So. 656; Ex parte Cairns, 209 Ala. 358, 96 So. 246.

No appeal lies from this interlocutory decree confirming the report of the register, and the petition for mandamus to review the decree is the proper remedy for the petitioner to pursue. Fix parte Eubank, 206 Ala. 8, 89 So. 656.

This petition avers the amount of alimony allowed the wife and the amount of the fee allowed her solicitors were unreasonable, grossly excessive, and wholly out of proportion to the petitioner's ability to pay. This was denied by the trial judge in his answer to the petition. This placed the burden of proof on the complainant, petitioner here.

The facts found and reported by the register will be treated like the verdict of a jury, and will not be disturbed unless clearly wrong. Johnston v. Johnston, 212 Ala. 351, 102 So. 709; Warren v. Lawson, 117 Ala. 339, 23 So. 65; Vaughan v. Smith,69 Ala. 92.

This presumption in favor of the correctness of the report of the register is strengthened by the decree of the court confirming it. Curtis v. Curtis, 180 Ala. 70, 60 So. 165; Johnston v. Johnston, 212 Ala. 351, 102 So. 709.

The burden rests on the petitioner to show the register erred in his report and the court erred in its decree sustaining it. This court will presume the report of the register is correct, and the decree of the court confirming it is free from error, until the contrary appears from the record and evidence before the register. Ex parte Cairns,209 Ala. 358 h. n. 4 and 5, 96 So. 246.

Neither the petition of the petitioner, nor the answer of the respondent, have attached thereto, as a part thereof, a certified copy of the testimony before the register. The evidence before the register is not before this court by the petition, or answer, or agreement of parties.

It is true there appears in the file in this court what purports to be copies of a bill, answer and cross-bill, answer to cross-bill, decree of reference, testimony on reference, report of the register; but this cannot be considered by this court in passing on this report of the register and this decree confirming it by the court. It does not contain even a certificate of the register that it is a copy of the pleadings in the cause and the testimony before the register on the reference, and there is no agreement of the parties for this court to so consider it. It is true the petition avers and the answer admits exceptions were filed by the petitioner, and overruled by the court, to the report of the register. But we find nowhere in the record these exceptions filed by the complainant, petitioner here, to the report of the register and a reference therein to the evidence supporting his exception, as is required by rule 93 of the chancery court. See Chancery Rule 93 and Ex parte Cairns, 209 Ala. 358 h. n. 4 and 5,96 So. 246. So under this petition for mandamus, from the record in the cause as it appears herein, the petitioner did not meet the burden of proof placed on him, and the decree confirming the amount of alimony pendente lite, and the solicitor's fee of attorneys for cross-respondent, fixed by the register, will not be changed or annulled. Chan. Prac. Rule 93; Ex parte Cairns,209 Ala. 358 h. n. 4 and 5, 96 So. 246; Stewart v. Cross,66 Ala. 22 h. n. 2; and authorities supra.

Neither the petition, nor the answer, nor the purporting copy of the record in the cause, appear on transcript paper, as rule 36 of this court, appearing on page 891 of volume 4 of the Code of 1923, requires. This rule states, "No application shall be heard that is not so presented." So for this reason, also, the petition must be denied. Rule 36 of this court; Aust v. Sumter Farm Stock Co., 209 Ala. 669, h. n. 3, 96 So. 872; Ex parte Jackson, 212 Ala. 496, 103 So. 558, see opinion under headnote 5.

The petition for writ of mandamus is denied.

The writ is denied, and petition is dismissed.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.