Opinion
6 Div. 179.
February 3, 1921.
Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.
Ellis Matthews, of Birmingham, for appellant.
The bill was not sufficient in its allegation of cruelty. 10 Ala. 527; 19 Ala. 307; 23 Ala. 785; 30 Ala. 714; 54 Ala. 165; 62 Mich. 322, 28 N.W. 812; 17 Cent. Dig. 572. In a bill of this character it must be alleged that there was a separation, and that it rightfully and properly existed without fault on the part of the wife and by reason of the wrongful conduct of the husband. 36 Iowa, 210; 70 Iowa, 614, 31 N.W. 956; (N.J.) 27 A. 78; 152 Ill. 577, 38 N.E. 794; 73 N.J. Eq. 745, 70 A. 323; (Ind.App.) 98 N.E. 900. The bill was multifarious. 8 Ala. 694; 94 Ala. 125, 10 So. 328; 117 Ala. 612, 23 So. 651; 113 La. 429, 37 So. 17; 168 Ala. 426, 53 So. 268.
Fred Fite, of Birmingham, and A. F. Fite, of Jasper, for appellee.
The bill was not multifarious. Sections 3808 and 4503, Code 1907; 55 Ala. 430. Failing to perform his legal and moral duty to his children, the father forfeits his right to their custody. 92 Ala. 78, 9 So. 728.
Courts of equity exercise in this state original jurisdiction to award alimony independently of a bill for divorce. Spafford v. Spafford, 199 Ala. 300, 74 So. 354, L.R.A. 1917D, 773; Johnson v. Johnson, 190 Ala. 527, 67 So. 400.
Reasonable compensation for complainant's solicitor was properly claimed. Johnson v. Johnson, 195 Ala. 641, 71 So. 415.
We are of the opinion the bill sufficiently shows the separation of the parties was due to the fault of the husband, in that it is averred that complainant was compelled to and did leave respondent on account of his failure to support her and their children, and on account of his cruelty to her. Were complainant seeking divorce on the ground of cruelty, the charge would be insufficient for failure to state the facts (Hill v. Hill, 10 Ala. 527) and as being a mere conclusion of the pleader; but here this averment is merely thrown in by way of additional excuse for complainant in leaving the respondent's home, as the sufficiency of the bill rests upon the averment of nonsupport.
As said by this court in the Spafford Case. supra:
"Suits of this nature are regarded as of a tripartite character, wherein the public occupies in effect the position of a third party, and the court is bound to act for the public in such cases, though of course the rights of the parties themselves must be fully respected. * * * We apprehend, therefore, that in cases of this character questions of mere legal niceties in regard to pleading should not interfere with the meritorious consideration of the cause. The bill should of course contain sufficient averment of facts on which the suit is founded to give due notice to respondent of what he is called upon to defend."
We are persuaded that the bill in the instant case meets these requirements.
Counsel for appellant cite authorities from other states to the effect that in suits of this nature the wife must justify the separation by proof which would entitle her to a divorce. Whatever may be the holding in other jurisdictions, the question was conclusively settled, contrary to this contention, by this court in the Spafford Case, supra, where it was said:
"It is therefore not absolutely essential for the support of a bill of this character that facts be alleged sufficient to warrant a divorce."
The remaining question relates to the assignment of error attacking the bill for multifariousness, in that the wife seeks alimony independent of divorce, and also the custody of the children. There exists no universal rule in regard to multifariousness as to cover all possible cases. The objection is greatly a matter of discretion, which is never to be exercised so as to do plain violence to the maxim that courts of equity "delight to do justice, and not by halves." O'Neal v. Cooper, 191 Ala. 182, 67 So. 689.
We think the bill in the instant case is not subject to this objection, and that to hold otherwise would, indeed, do plain violence to the foregoing maxim.
It results that the decree appealed from will be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.