WHATLEY v. WHATLEY

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Docket Number

6 Div. 479.

Attorney(S)

Fred Fite, of Hamilton, for appellant. It is incumbent upon the wife to set out in her pleading some estate of the husband from which an allowance may be made for alimony or maintenance. Lawrence v. Lawrence, 141 Ala. 356, 37 So. 379; Code 1940, Tit. 34, §§ 30, 31. Fite and Fite, of Hamilton, for appellee. Demurrer addressed to bill and to each paragraph thereof separately and severally goes to bill as a whole and not to its different aspects; and if bill in any aspect contains equity, demurrer should be overruled. Massey v. Massey, 246 Ala. 396, 20 So.2d 790; Floyd v. Andress, 246 Ala. 301, 20 So.2d 331; Barnes v. Powell, 241 Ala. 409, 3 So.2d 80; First Nat. Bank v. Forman, 230 Ala. 185, 160 So. 109; American Traders Nat. Bank v. Henderson, 222 Ala. 426, 133 So. 36; First Nat. Bank v. Bonner, 243 Ala. 579, 11 So.2d 348. In bill for divorce on ground of voluntary abandonment nicety of pleading is not required. Nelson v. Nelson, 244 Ala. 421, 14 So.2d 155; Kidd v. Kidd, 246 Ala. 313, 20 So.2d 515.

Judges

LAWSON, Justice.

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WHATLEY v. WHATLEY.

LAWSON, Justice.

The bill in this case was filed by the wife, appellee, against her husband seeking a divorce, temporary and permanent alimony, and solicitor's fees. The appeal is from a decree overruling a demurrer to the bill.

Complainant seeks a divorce on the ground of voluntary abandonment. The averments of the bill as to such abandonment are sufficient under the statute. § 20, Title 34, Code 1940, as amended, Act No. 463, approved July 10, 1943, General Acts 1943, page 425; Campbell v. Campbell, 246 Ala. 107, 19 So.2d 354, 155 A.L.R. 130; Nelson v. Nelson, 244 Ala. 421, 14 So.2d 155; Stephenson v. Stephenson, 213 Ala. 382, 105 So. 183.

The demurrer was general to the bill as a whole and since the bill clearly contains equity in so far as it seeks a divorce, the demurrer was properly overruled. If the bill contains equity in any of its aspects, a demurrer to the bill as a whole is properly overruled. Roberts et al. v. Ferguson, 226 Ala. 594, 147 So. 894; Oden v. King, 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413; Massey et al. v. Massey, 246 Ala. 396, 20 So.2d 790; Robbins v. Schaefer, 242 Ala. 353, 6 So.2d 415.

The decree is due to be affirmed. It is so ordered.

Affirmed.

GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.

WHATLEY v. WHATLEY.

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