May R. Therry brought a bill which was amended praying for divorce and alimony against Gerald Edward Therry upon allegations of extreme cruelty and habitual indulgence in violent and ungovernable temper towards complainant. Defendant filed answer and cross bill denying the allegations against him, alleging similar charges against complainant and alleging that when he was married to complainant she was the legal wife of Claude C. Gardner, the prayer of the cross bill being for an annulment of the marriage and a dismissal of the bill of complaint. Testimony was taken before a special master. Exceptions to his report were filed and considered by the court. *Page 454 The final decree appealed from dismissed the bill of complaint, annulled the marriage on the ground that the cross defendant "had a living undivorced husband," denied permanent alimony and denied additional fees to complainant's attorney to whompendente lite fees had been awarded.
The complainant testified that before her marriage to defendant she had been married to and lived with Claude C. Gardner as husband and wife, there being a living child of such marriage, and that such marriage had not been dissolved or annulled. Claude C. Gardner likewise testified to the same facts. There was no contradiction.
There is ample evidence to sustain the decree annulling the marriage of complainant with defendant, and there having been no legal marriage between them, permanent alimony was properly denied complainant. Solicitors' fees had been awarded complainant's counsel during the litigation in the trial court and in this court; and it was not error to deny further fees to be paid by the defendant cross-complainant.
The record has been carefully considered and no material errors being made to appear the decree is affirmed.
WHITFIELD, P. J., and BROWN and BUFORD, J. J., concur.
DAVIS, C. J., and TERRELL, J., concur in the opinion and judgment.
ON PETITION FOR REHEARING.