Opinion
No. 38951.
November 16, 1953.
1. Divorce — alimony — attorney's fee — evidence warranted denial of.
In suit for divorce where evidence wholly failed to comply with prerequisites to a divorce on a charge of habitual cruel and inhuman treatment, denial of divorce and of attorney's fee, suit money and alimony was not error.
2. Equity pleading — divorce — separate maintenance — bill in alternative permissible.
A bill in the alternative for divorce or separate maintenance is permissible.
3. Appeals — separate maintenance — matters not submitted to trial court — Supreme Court will not put trial court in error.
Where wife sought divorce on charge of habitual cruel and inhuman treatment, refusal of court to grant wife support and separate maintenance was not error where wife's bill did not submit such issue to chancery court and record failed to show that wife at any time asked court to pass upon whether she was entitled to separate maintenance.
Headnotes as approved by Ethridge, J.
APPEAL from the chancery court of Quitman County; R.E. JOHNSON, Chancellor.
E.C. Black, Marks, for appellant.
I. Cited and discussed the following authorities:
Barkwell v. Swan, 69 Miss. 907, 13 So. 809; Barnett v. Nichols, 56 Miss. 622; Carraway v. Carraway, 212 Miss. 857, 56 So.2d 41; Dodge v. Evans, 43 Miss. 570; Garland v. Garland, 50 Miss. 694; Scott v. Scott, 73 Miss. 575, 19 So. 589; Verner v. Verner, 62 Miss. 260; Winkler v. Winkler, 104 Miss. 1, 61 So. 1; Yelverton v. Yelverton, 200 Miss. 569, 28 So.2d 176; Sec. 2743, Code 1942.
John P. Horan, Water Valley, for appellee.
I. Cited and discussed the following authorities:
Barkwell v. Swan, 69 Miss. 907, 13 So. 809; Barnett v. Nichols, 56 Miss. 622; Bradford v. Bradford, 80 Miss. 467, 31 So. 963; Davis v. Davis, 194 Miss. 343; Dodge v. Evans, 43 Miss. 570; Nichols v. Nichols, 197 Miss. 302, 20 So.2d 72; Price v. Price, 181 Miss. 539, 170 So. 855; Scott v. Scott, 75 Miss. 575, 19 So. 589; Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791; Vance v. Vance, 197 Miss. 322, 20 So.2d 825; Walker v. Walker, 140 Miss. 340, 105 So. 753, 42 A.L.R. 1525; Sec. 2737, Code 1942; 22 C.J. 207, Note 52; Amis on Divorce and Separation in Miss., Secs. 170, 348, pp. 226, 349.
This is an appeal by Mrs. Etta Pierce Lakey from a decree of the Chancery Court of Quitman County denying her a divorce from appellee, B.S. Lakey. The bill was based on a charge of habitual cruel and inhuman treatment. (Hn 1) The evidence wholly failed to comply with the prerequisites to a divorce on that ground, and the chancery court was correct in denying it. Amis, Divorce and Separation in Mississippi, (1935), Secs. 103-129A. For the same reason there was no error in denying attorney's fee, suit money, and alimony.
Appellant argues that, even though she was not entitled to a divorce, still under the general averments of her bill and the prayer for general relief she was entitled to a decree granting her support and separate maintenance. (Hn 2) A bill in the alternative for divorce or separate maintenance is permissible. Lynch v. Lynch, 202 Miss. 500, 32 So.2d 358 (1947). But here the only basis for appellant's complaint was a prayer for a divorce on the stated ground. (Hn 3) The bill did not submit to the chancery court the issue of separate maintenance, and the record fails to show that appellant at any time asked the trial court to pass upon whether she was entitled to separate maintenance. We cannot put the trial court in error for something upon which it had no opportunity to pass. The decree appealed from simply denied a divorce, and is affirmed. This is without prejudice to whatever rights appellant might have, if any, in a suit for separate maintenance. We do not consider on this appeal that issue.
Affirmed.
McGehee, C.J., and Lee, Arrington, and Lotterhos, JJ., concur.