Opinion
8 Div. 331.
November 19, 1931.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
O. D. Street Son, of Birmingham, for appellant.
In the absence of a statute so authorizing, the wife who is still living with the husband cannot maintain a bill for separate maintenance. 30 C. J. 1071; 19 C. J. 85; 14 Cyc. 639; 9 R. C. L. 384, 487; Bucknam v. Bucknam, 176 Mass. 229, 57 N.E. 343, 49 L.R.A. 735; Smith v. Smith, 156 Ill. App. 176; Will v. Will, 134 Ill. App. 67; Klemme v. Klemme, 37 Ill. App. 54; Battey v. Battey, 1 R.I. 212; Buchanan v. Buchanan, 17 Ont. W. N. 444; Cooper v. Cooper, 160 Ill. App. 449; Polster v. Polster, 145 Mo. App. 606, 123 S.W. 81; Anshutz v. Anshutz, 16 N.J. Eq. 162; Herrett v. Herrett, 60 Wn. 607, 111 P. 867; Pitchford v. Pitchford, 222 Ala. 612, 133 So. 718; Farmer v. Farmer, 86 Ala. 322, 5 So. 434. An original bill which is fatally defective because without equity will not support a supplemental bill. Neubert v. Massman, 37 Fla. 91, 19 So. 625; 2 Street's Fed. Eq. Pr. § 1163; 16 Cyc. 362; 10 R. C. L. 501; 19 Cent. Dig. Equity, § 584; Vaughan v. Vaughan's Heirs, 30 Ala. 329; Land v. Cowan, 19 Ala. 297; Hill v. Hill, 10 Ala. 527; Harper v. Raisin Fert. Co., 158 Ala. 329, 48 So. 589, 132 Am. St. Rep. 32; Mellor v. Smither (C.C.A.) 114 F. 116; Straughan v. Hallwood, 30 W. Va. 274, 4 S.E. 394, 8 Am. St. Rep. 29; Putney v. Whitmire (C. C.) 66 F. 385; 2 Daniel's Ch. Pr. (Perkins' Ed.) 1395; Bernard v. Toplitz, 160 Mass. 162, 35 N.E. 673, 39 Am. St. Rep. 465; Candler v. Pettit, 1 Paige (N.Y.) 168, 19 Am. Dec. 399; New York Sec. Trust Co. v. Lincoln St. R. Co. (C. C.) 74 F. 67; Shields v. Barrow, 17 How. 130, 15 L.Ed. 158; Collins v. Lavenberg, 19 Ala. 682; Ramey v. Green, 18 Ala. 771; Barringer v. Burke, 21 Ala. 765.
J. A. Lusk, of Guntersville, for appellee.
Courts of equity in this state exercise original jurisdiction to award alimony independently of a bill for divorce. Tutwiler v. Tutwiler, 205 Ala. 283, 87 So. 852; Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L.R.A. 1917D, 773; Johnson v. Johnson, 190 Ala. 527, 67 So. 400; Basden v. Basden, 209 Ala. 632, 96 So. 881. A wife mistreated by her husband does not have to flee from the home before equity will grant her relief. Glover v. Glover, 16 Ala. 440; Hinds v. Hinds, 80 Ala. 225; Ex parte Allan, 220 Ala. 482, 125 So. 612. Matters occurring after the filing of the original bill entitling complainant to relief are to be brought in by a supplemental bill. Sims Ch. Pr. § 611; Ex parte Printup, 87 Ala. 148, 6 So. 418; Renfro v. Goetter, 78 Ala. 311; Cowles v. Andrews, 39 Ala. 125.
The original bill disclaims any desire for a divorce and only seeks a separate support and maintenance for the complainant and her children. It has been repeatedly held by this court, commencing with Glover v. Glover, 16 Ala. 440, and continuing through a line of decisions, including the case of Ex parte Allan, 220 Ala. 482, 125 So. 612, that a court of equity has the inherent power to award the wife a separate maintenance or allowance out of the estate of the husband, even when no divorce is sought, but such relief will only be awarded when the pleading and proof shall make out a case entitling her to same. The bill does not make out such a case when it shows that there has been an abandonment or separation and that the complainant and respondent were living together as man and wife when the bill or petition was filed. Indeed, we find no Alabama case where the wife was granted a separate support and allowance if living with her husband when the bill was filed. On the other hand, we find respectable decisions by other courts holding that a separation, at the time the bill is filed, is a condition precedent to relief unless there is a statute to the contrary. Smith v. Smith, 156 Ill. App. 176; Battey v. Battey, 1 R.I. 212; Anshutz v. Anshutz, 16 N.J. Eq. 162. In fact, our own court, in the case Jones v. Jones, 174 Ala. 461, 57 So. 376, uses the following expression: " 'The object and purpose of such a bill as this is, not to sever the ties of matrimony, but to provide for the wife during the separation.' " The original bill was without equity and the trial court erred in overruling the respondent's demurrer to same.
The supplemental bill was likewise without equity as its equity was dependent upon the original bill and not upon the subsequent facts therein set out and which might give it equity as a separate or independent bill. It is a general principle of equity that, if the record shows that the complainant was not entitled to relief upon the original bill, matter which subsequently occurred, and which is averred by way of supplemental bill, does not cure the defect. Harper v. Raisin Fertilizer Co., 158 Ala. 329, 48 So. 589, 132 Am. St. Rep. 32, and cases there cited.
The decree of the circuit court is reversed, and one is here rendered sustaining the demurrer to the original and supplemental bill.
Reversed and rendered.
GARDNER, BOULDIN, and FOSTER, JJ., concur.