Bickley v. Bickley

TYSON, J. This bill is filed bjr a married woman against her husband for maintenance on account of liis alleged desertion of her and his refusal to furnish her with necessary means for her support, etc. A divorce is not sought and could not be had, as tlié' statutory-period of desertion had not expired .when the bill was filed. — Code, § 1485. The husband in his answer sets up the. defense of the infidelity of the complainant, in that she has' been guilty of illicit sexual intercourse, since her. marriage with him, and makes his answer a cross-bill, praying upon final hearing that the bonds of matrimony between them be dissolved. A motion to dismiss the cross-bill for want of equity was overruled, and this appeal is prosecuted from that decree. The motion to dismiss this appeal must- be granted. Code, § 427; Throne-Franklin Shoe Co. v. Gunn, 123 Ala. 640, and cases cited. The appellant anticipating this result, submits a motion for mandamus, prohibition or other remedial writ. It seems to be conceded by appellant’s counsel that the matter alleged in the answer constitutes a good defense, if proven, but.it is contended that it cannot be made the predicate for, affirmative relief, by way pf cross-bill. The theory is, that the cross-bill is an en [406] tire departure from the subject matter of the original bill, and, therefore, the chancellor exceeds his jurisdiction in entertaining it. The case of Ex parte Woodruff, 123 Ala. 99, is conclusive against the right of the complainant to have the writ of mandamus, and we think, also, conclusive' against his fight to the writ of prohibition. ' ' We do not doubt that should the chancellor on final' hearing grant the relief sought by the cross-bill, upon appeal from that decree this court would review the question if properly presented now' sought to be reviewed upon this application for the writ of prohibition. Such has been the uniform practice of this court as shown by former decisions.—Davis v. Cook, 65 Ala. 617; O’Neill v. Perryman, 102 Ala. 522; Cont. Ins. Co. v. Webb, 54 Ala. 688; Whitfield v. Riddle, 78 Ala. 99; Tutwiler v. Dunlap, 71 Ala. 126; Grimball v. Patton, 70 Ala. 626, and the numerous authorities cited in brief of appellant’s counsel. The complainant having the right to have the question reviewed upon appeal from the final decree, if adverse to her, the writ of prohibition will not be awarded. It is not a revisory writ and can no moire be made to perform the office of an appeal or writ of error than can the writ of mandamus.—3 Brick. Dig., 717, § 1; Ex parte Brown, 58 Ala. 536. Appeal dismissed. Writs of mandamus and prohibition denied.