Opinion
7 Div. 594.
March 25, 1926.
Appeal from Circuit Court, Shelby County; E. S. Lyman, Judge.
J. L. Davidson, of Birmingham, and Paul O. Luck, of Columbiana, for appellant.
It was error to allow amendment to the bill after decree fixing the rights and liabilities of the parties. Cochran v. Miller, 74 Ala. 50; Jones v. Wilson, 54 Ala. 50; Beatty v. Brown, 4 So. 609, 85 Ala. 209; Smith v. Coleman, 59 Ala. 260; Munter v. Linn, 61 Ala. 492; Brock v. Clio Bkg. Co., 92 So. 805, 207 Ala. 404. The submission should first have been set aside. There was no proof before the court upon which the decree under the amended bill could be based. Sims' Ch. Pr. § 563; Wilkinson v. Buster, 22 So. 34, 115 Ala. 578; McMinn v. Karter, 22 So. 517, 116 Ala. 390; White v. White, 93 So. 457, 207 Ala. 533; Potts v. Court of Com'rs, 82 So. 550, 203 Ala. 300. Respondent should have been given an opportunity to plead to the bill as amended. Smith v. Lambert, 72 So. 118, 196 Ala. 269.
Fred G. Koenig, of Birmingham, for appellee.
The amendment was not such as to take it out of the lis pendens, and not a departure. Da Costa v. So. P. Co., 176 F. 843, 100 C.C.A. 313; Jester v. Jester, 90 A. 82, 27 Del. (4 Boyce) 542; Barth v. Barth, 42 S.W. 1116, 102 Ky. 56, 80 Am. St. Rep. 335; Brindley v. Brindley, 25 So. 751, 121 Ala. 431; Lawrence v. Lawrence, 37 So. 380, 141 Ala. 356.
Appellant's most important contentions are: 1. That the amendment to the bill of complaint was improperly allowed (1) because it was offered after a final decree settling the main issue in the case, and (2) it changed the nature of the cause, setting up a new and different case, and working injustice to respondent. 2. That, even if allowable, it was necessary that the submission should have been first set aside, and notice of its allowance given to respondent so that he might plead, answer, or demur to the bill in its changed aspect. 3. That, in any event, the facts set up in the original bill, though sufficient as a showing for divorce and incidental alimony, do not state a cause of action for separate maintenance without divorce, and hence do not support the decree granting that relief.
Though the decree of September 3, 1923, recites that "it is ordered, adjudged, and decreed that the complainant is entitled to the relief prayed for," this is but a declaration of the effect of the evidence, and is not an actual adjudication of that relief. Certainly, if no further decree had ever been rendered, these parties would not have been absolved from the marriage relation. Moreover, an examination of that decree, the register's report thereon, and the final decree on the amended bill, shows clearly that the first decree related only to temporary alimony and solicitor's fees — a purely interlocutory decree.
In a suit by the wife for divorce, the court must make an allowance for her support pendente lite. Code 1923, § 7417. And, upon a decree for divorce, the court must decree alimony if the wife has no estate sufficient for her maintenance. Code, § 7418. The alimony is a legal incident to the divorce, and the fact that the husband has furnished adequate support during separation does not bar the wife's right to divorce, if the ground therefor otherwise exists. And a suit for divorce may be filed either in the county of the respondent's residence or in the county where the parties resided at the time of the separation. Code 1923, § 7415.
On the other hand, a suit for separate maintenance is grounded on the failure or refusal of the husband to furnish any or adequate support for the wife, having the means or ability to do so. 30 Corp. Jur. 1086, § 891, citing Tutwiler v. Tutwiler, 87 So. 852, 205 Ala. 283; Cross v. Cross, 75 So. 333, 200 Ala. 21; Johnson v. Johnson, 67 So. 400, 190 Ala. 527. Obviously, the allegations of a bill for divorce, sufficient therefor, may or may not be sufficient to authorize relief by way of separate maintenance. And a suit for maintenance only must, like any other chancery suit, be filed in the county of the respondent's residence, if he is a resident of the state. Code 1923, § 6524.
Our statute allows amendments to bills in equity, as a matter of right, "at any time before final decree, by striking out, or adding new parties, or to meet any state of evidence which will authorize relief." Code 1923, § 6558. This statute has been given a broad and liberal construction (Ex parte Delpey, 66 So. 22, 188 Ala. 449), but it does not change the general principles of equity which regulated the character of permissible amendments before the enactment of the statute. (Rapier v. Gulf City Paper Co., 69 Ala. 476, 481). Hence, the right to amend is not absolute when the amendment makes an entirely new case, or is a radical departure from the cause of action stated in the original bill, or works an entire change of parties. Pitts v. Powledge, 56 Ala. 147.
It is clear that in this case the amendment was not designed to meet a state of the evidence authorizing relief not comprehended in the original prayers of the bill. The amendment, by striking out the prayer for divorce, ipso facto converted the bill into one for separate maintenance merely. The allegations of the original bill (and no allegations of fact were added or stricken by the amendment) were sufficient to support a decree for divorce, with incidental alimony, but are manifestly insufficient to support a decree for separate maintenance without divorce, because the essential allegation of the respondent's failure or refusal to furnish support is wanting. The allegation of abandonment does not import such failure, and does not, standing alone, supply the missing element.
This amendment therefore eliminates from the bill the only aspect of relief for which the allegations of fact are apt and sufficient; and, notwithstanding the sufficiency of the proof for granting separate maintenance, proof without allegations does not warrant relief.
Again, the amendment converts the suit into one whose venue is fixed by law in the county of respondent's residence, and which cannot, against his objection seasonably interposed, be maintained in any other county. Therefore, if it were conceded that the amendment was properly allowable, it was clearly erroneous to enter a final decree against respondent without first giving him notice of the allowance of the amendment, and an opportunity to object to the venue by plea in abatement. Otherwise every suit for separate maintenance may evade the law of venue by the simple expedient of conjoining a prayer for divorce, to be eliminated at any convenient time in the future.
For the reasons stated, we think the final decree was affected with error, and must be reversed, with remandment of the cause for further proceedings in accordance herewith.
Reversed and remanded.
THOMAS, MILLER, and BOULDIN, JJ., concur.