The appellee moves to dismiss the appeal because the same was not made returnable by the register as fixed by section 2870 of the Code of 1907. It is sufficient to say that the law fixes the return, and an error of the register in designating a different time does not afford a ground for dismissing the appeal. Capehart v. Granite Mills Co., 97 Ala. 353, 12 So. 44.
We also think that the decree appealed from is such a one as will support an appeal under the statute. The original decree was kept open, and was therefore subject to modification upon petition and proper showing, and the denial of the appellant's motion, in effect, gave finality not only to the ruling upon the petition, but to the original decree sought to be modified. This decree is therefore different from the one considered in the case of Brady v. Brady, 144 Ala. 414, 39 So. 237, and others along that line. Moreover, if not an appealable decree, as held in the Brady Case, supra, the appellant would be entitled to the writ of mandamus in the alternative, and which was moved for upon the submission of this cause.
For previous reports of this cause see 203 Ala. 516,93 So. 661. Upon the first consideration, as pointed out in the opinion (203 Ala. 516, 93 So. 661) the trial court retained the control of the decree with reference to the alimony, and we repeat that the clause there employed was substantially as broad as the one dealt with in the case of Jones v. Jones,131 Ala. 445, 31 So. 91. The court may in its decree reserve the right to alter the payments of alimony as justice may require, or the court may by statute be given the right to alter the payments at any time, but except for reservation in the decree or express statutory authority the court has no power to alter the decree. Schouler on Marriage and Divorce (6th Ed.) p. 1990. While we have no statute on the subject, as in some other states, the reservation continues the control to like effect. Morgan v, Morgan, supra; Jones v. Jones, 131 Ala. 445,31 So. 91; Johnson v. Johnson, 195 Ala. 641, 71 So. 415. We also held, in line with the great weight of authority, that the subsequent marriage of the wife, in the absence of proof of the inability of the second husband to support her, made out a case for the remission of the unaccrued periodical payments. See note to Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann. Cas. 520.
It is also well settled that modification of the decree can only be ordered on proof of change of condition as the decree is final as to the conditions existing at the time as existing conditions are conclusively presumed to have been considered upon the rendition of the decree. Schouler on Marriage Divorce, page 1993 and many cases under citation 18. While the decree in the present case is silent as to any agreement of *Page 9 the parties as to the alimony the appellee has attempted to set up one anterior thereto. The authorities are not entirely harmonious on the effect to be given agreements even when referred to in the decree, but we are disposed to follow that line, especially when the agreement is not incorporated in or referred to in the decree, which hold that the power of the court to change a decree granting alimony upon the remarriage of the divorced wife is not affected by the fact that the decree was based on an agreement of the parties as to the amount of the alimony. Southworth v. Treadwell, 168 Mass. 511,47 N.E. 93; Blake v. Blake, 75 Wis. 339, 43 N.W. 144. We therefore hold that, as the original decree was not bound to conform to the agreement, or, if the court considered same, it did not deem itself bound thereby by expressly reserving the future control of the payments awarded, in a modification or change of same subsequent conditions should only be considered. As the appellee sought to avoid the modification of the decree upon this ground alone, and made no effort to show the inability of her present husband to support her, which was incumbent upon her under the former holding, she presumptively, could not do so. Southworth v. Treadwell, 168 Mass. 511,47 N.E. 93.
The remarriage of the wife does not, however, ipso facto release the husband of any installments due or accrued prior to her second marriage or between said time and the granting of the order of modification or as of the time when it should have been granted if erroneously refused or when the order is delayed by an unsuccessful appeal by the wife. Franck v. Franck, 107 Ky. 362, 54 S.W. 195; Brandt v. Brandt, 40 Or. 477,67 P. 508. The first deferred payment of $1,000 was due July 16, 1919, and the appellant's petition for modification was not acted upon until June 17, 1919, when eleven-twelfths of the first installment had accrued. We therefore hold that the trial court erred in denying the petition for a modification except as to this extent, and the decree of the circuit court is reversed, and one is here rendered relinquishing all of said alimony except $916.66, with interest thereon since the 16th of July, 1919.
The decree of the circuit court is reversed, one is here rendered granting the relief except as above indicated, and the cause is remanded in order that the trial court may make the proper orders in conformity with this opinion, and for the payment of the sum due the appellee. Costs of this appeal to be taxed to appellee, and all cost of the court below to be borne by the appellant.
Reversed, rendered, and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.