In response to an application for rehearing we have further considered the nature of the decree from which this appeal is taken.
We are cited to our case of Morgan v. Morgan, 211 Ala. 7,99 So. 185, as authority opposed to the former opinion in this case. We recognize that our former opinion in this case is not in accord with it. We also note that the cases of Gabbert v. Gabbert, and the two cases of Buttrey v. Buttrey, supra, and Bahlman v. Bahlman (Ala. Sup.) 119 So. 210,1 are also in conflict with it, and they cannot be reconciled. After a review of them all and the principles which apply we think we should follow the Morgan Case, supra. This necessitates overruling the Gabbert Case, and the two eases of Buttrey v. Buttrey, supra, and the Bahlman Case, supra, and we therefore accept that result and overrule them, in so far as they conflict with this opinion. This does not affect the holding in the case of Brady v. Brady, 144 Ala. 414, 39 So. 237, which is not in conflict with, but presents a different situation from, the Morgan Case, supra, as therein pointed out.
The result now reached leaves the situation where an appeal lies to this court from a decree of the circuit court in equity, either denying or granting a petition to such court praying for a modification of an allowance made as permanent alimony in a decree rendered therein on final hearing, whether such latter decree is in a proceeding for a divorce, or one solely for alimony, and whether the allowance makes provision for the wife alone, or for her and children; and it is immaterial to this question whether such final decree reserved control over said allowance or not, but the decree on such petition must finally dispose of the same. It is also immaterial to the question whether thereby further control is reserved in the decree sought to be reviewed. We repeat that the rule announced in the Brady Case, supra, is not hereby affected, but remains in effect, so that an appeal will not lie to this court to review a decree fixing or modifying or denying a petition to fix or modify an allowance of alimony pendente lite, and that such ruling may only be reviewed in this court by mandamus.
We now proceed to review the record on the appeals taken by both parties from the decree of the court modifying the final decree of divorce, which also fixes a monthly allowance as permanent alimony. We have considered all the evidence in the case which was taken orally in the presence of both the judges of the circuit, upon which they entered a decree reducing the monthly allowance from $150 to $100. We will not undertake to review the evidence, as we think it would not serve any useful purpose here. We will content ourselves in this connection by stating that in our opinion the decree of the court modifying such allowance is fully justified by the evidence, and on both appeals the decree of the circuit court is affirmed.
Affirmed.
All the Justices concur.
1 Ante, p. 519. *Page 703