We have given careful consideration to brief filed by counsel for appellee on application for rehearing, wherein it is earnestly insisted that we erred in our original opinion in holding that the evidence was not sufficient to justify a decree of annulment. We adhere to our original opinion.
It is insisted that even in divorce cases the provisions of § 26, Title 34, Code 1940, prohibiting a divorce "on the confession of the parties, or either of them" does not apply where the case is actually contested or litigated. In support of this contention the following cases are cited: Dawson v. Dawson, 240 Ala. 258, 198 So. 622, 623; Lunsford v. Lunsford,232 Ala. 368, 168 So. 188, 189; Lyall v. Lyall, 250 Ala. 635,35 So.2d 550, 552. These cases simply do not support the position for which they are cited. In Dawson v. Dawson, supra, it was said: "Extra judicial confessions in a litigated case are now admissible, but must be corroborated by other proof." (Emphasis supplied.) To like effect is the holding in Lunsford v. Lunsford, supra: "* * * True, a divorce cannot be rendered on the confession of defendant, section 7413, Code, but when she is contesting the divorce, the statute does not exclude evidence of extra-judicial admissions in corroboration of other proof. * * *" And in Lyall v. Lyall, supra, we said, in part: "* * * The rule is that admissions of a plaintiff are competent evidence to defeat a divorce, while admissions of defendant are not alone sufficient to grant a divorce. * * * " (Emphasis supplied.)
It is insisted that our holding in the original opinion is in conflict with the case of Jordan v. Courtney, 248 Ala. 390,27 So.2d 783. There is nothing in the opinion in that case which is in any way at odds with the conclusion which we reached in this case. In Jordan v. Courtney we did render a judgment here annulling the marriage solely on admissions of the respondent, who did not testify. However, the opinion does not treat that question. Since the question was not treated, we do not consider the fact that such a judgment was rendered as being controlling here.
The application for rehearing is overruled.
All the Justices concur. *Page 141