This is an original application for writ of mandamus seeking to review the decretal order of the Circuit Court of Jefferson County, sitting in equity, Hon. George Lewis Bailes presiding, referring to the register of said court the matter of ascertaining the faculties of the complainant and of the defendant and what would be a reasonable allowance to the defendant as alimony pendente lite, suit money and solicitor's fees.
This is a proceeding in equity wherein the bill was filed by the husband against the wife for divorce, charging voluntary abandonment by the wife for one year next preceding the filing of the bill. The case was submitted here on petition for mandamus, the demurrer and answer of the respondent thereto. A transcript of the record of the proceedings in the circuit court is neither attached to the petition nor the answer and this court is not advised as to the contents of the motion or petition filed by the wife seeking temporary alimony and solicitor's fees. Nor is the order of reference, the testimony taken before the register, the exceptions to the register's report, nor the decretal order of the court, overruling the exceptions and granting temporary alimony and solicitor's fees, made a part of this record. The demurrer and the answer both challenge the sufficiency of the petition on that ground.
In my opinion, the demurrers are well taken, and should be sustained. For aught that appears before us, taking the answer of the judge as true, the good faith of the defendant was not questioned. She had been brought into court by due process of law at the instance of the husband, who concedes that she is his wife. This proceeding is in lieu of an appeal, no appeal being authorized, and if an appeal was authorized and the case presented on a mere petition without a record, no one would contend that the judgment and decree of the court could be reviewed. See Ex parte Austin, 245 Ala. 22, 15 So.2d 710, where all the proceedings were set out.
The majority proceed on the theory that the primary court should take as true the charges filed by the husband in the absence of a denial by answer and hold on the authority of Ex parte Austin, 245 Ala. 22, 15 So.2d 710, 712, that the wife had by her misconduct forfeited her right to an allowance, or that the husband was relieved of his obligation of support by such misconduct (the utterance referred to is found in the second paragraph on page 712 of the Southern Reporter); and ignore the absence of the petition or motion of defendant, which, so far as here appears, contained a substantial denial of the truth of the complainant's allegations.
The burden here is on the petitioner who seeks to vacate an order of a court of competent jurisdiction to show that the court had acted contrary to law in entering said decree; and the effect of the holding of the majority is to examine into the merits of the charges made by the husband against his wife and determine in advance of hearing that the wife is acting in bad faith. We quote from the majority opinion: "When, as here, the husband brings the suit for divorce, and charges the wife with marital misconduct, to entitle the wife to alimony and solicitor's fees pendente lite, she must, at least, make out a prima facie case, one element of which is her good faith in defending the suit. * * *"
We here repeat what was said in Arnold v. Arnold, Ala.Sup.,18 So.2d 730, 736:1 "The propriety of an allowance of alimony pendente lite, suit money and solicitor's fees in a proceeding for divorce is rested upon the established or conceded relation of husband and wife, the duty of support resting upon the husband so long as that relation exists. And as a general rule an inquiry into questions of good faith is limited to the existence of the marriage where its existence or validity is disputed by answer. The court will not ordinarily go into the merits of the cause of action, but will limit the inquiry to an examination of the pleadings and affidavits. Ex parte Austin,245 Ala. 22, 15 So.2d 710; 17 Amer.Juris. 435, §§ 540, 541."
This utterance is sustained by universal authority.
In my judgment the petitioner has not shown that the court erred in the order made, and the petition should be dismissed.
THOMAS, J., concurs in the dissent.
1 246 Ala. 86, 93. *Page 98