Ex Parte Powell

A long line of cases in this state has confirmed the practice of reviewing an order of the circuit court, allowing or denying alimony and counsel fees pendente lite, by the writ of mandamus. Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex parte Jones, 168 Ala. 183, 53 So. 261; Id., 172 Ala. 186, 55 So. 491; Jordan v. Jordan, 175 Ala. 640, 57 So. 436; Ex parte Edwards,183 Ala. 659, 62 So. 775; Ex parte Eubank, 206 Ala. 8,89 So. 656; State ex rel. Sellers v. Locke, Judge, 208 Ala. 169,93 So. 876; Ex parte Dunlap, 209 Ala. 453, 96 So. 441; Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866; Rogers v. Rogers, 215 Ala. 259, 110 So. 140.

An examination of these cases shows that the alimony order complained of was an order to pay the alimony or allowances, or an order confirming the register's report and fixing the amount to be paid; thus definitely imposing upon the petitioner a present obligation to pay the sums decreed.

In the instant case the decree was merely a preliminary declaration that the complainant is entitled to alimony pendente lite, with an order of reference to the register to examine the parties and hear any evidence offered, and to report what would be reasonable sums to be paid by way of alimony and counsel fees, pendente lite. Such a decree remains inert and harmless until the register's report is made and confirmed; and on that report the allowances may be rejected. So far, then, as this decree is concerned, the writ of mandamus is not necessary for the protection of the respondent; nor do we find any precedent for its use in such a case.

In suits for maintenance without divorce, these allowances pendente lite are within the sound discretion of the trial court. Ex parte Dunlap, 209 Ala. 453, 456, 96 So. 441. A prima facie case for ultimate relief, and good faith in its prosecution, are the tests usually applied. Ex parte Dunlap, supra; Ex parte Eubank, 206 Ala. 8, 89 So. 656. These appearing, the allowances may be made, and usually are made as a matter of course, without waiting to inquire into the merits of the case. Ex parte Eubank, supra; Ex parte Cairns, 209 Ala. 358,96 So. 246; Reed v. Reed, 85 Miss. 126, 37 So. 642.

The exception is that, where the prima facie showing of marriage is contested by plea or answer, that being the very foundation of the right, it is error for the trial court to proceed so far as to make any order or orders imposing upon the respondent the obligation to pay such an allowance, without first hearing the evidence, if any be offered, on that preliminary issue. Ex parte Jones, 168 Ala. 183, 53 So. 261; Reed v. Reed, 85 Miss. 126, 37 So. 642.

Upon the considerations stated above, the writ will be denied.

Writ denied.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.