Chafin v. Chafin
Chafin v. Chafin
Opinion of the Court
Rubye Brewer Chafin (appellee) filed her bill in equity against Herman Chafin (appellant). In the bill appellee seeks a divorce, custody of their minor child, alimony, counsel fees, the enforcement of a resulting trust and sale of an automobile for division. Appellant filed an answer to the foregoing bill denying that complainant was entitled to any relief under the bill and praying that the answer be taken as a cross-bill, that the bill be dismissed, that the care and custody of the child be granted to respondent until such time as complainant secures a proper place in which to rear the child and for general relief.
When the cross-bill was stricken there was no cross-bill kept in the cause on which the demurrer could operate. But, we cannot review the action of the court in striking the cross-bill on appeal. Mandamus is the proper remedy. Boozer v. Blake et al., 245 Ala. 389, 17 So.2d 152; Ex parte Walter, 202 Ala. 281, 80 So. 119. Accordingly the appeal must be dismissed.
However, it is not amiss for us to say that a cross-bill may not be maintained if the respondent can obtain all the relief to which he is entitled under his answer. Collins v. Collins, 252 Ala. 517, 41 So.2d 388; Hermoine Lodge No. 16, Knights of Pythias, of Decatur v. Grand Lodge, etc., 248 Ala. 473, 28 So.2d 166, 168 A.L.R. 948. We do not consider that a cross-bill is necessary for the respondent to secure custody of the child. The full powers of the equity court were invoked by the bill to protect the welfare and best interests of the child. Bureau of Catholic Charities v. Deakle, Ala.Sup., 45 So.2d 163.
We do not consider that Carter v. Carter, 248 Ala. 251, 27 So.2d 201, cited by appellant, is contrary to what we have said. In that case a question of misjoinder of parties was presented. ITere the same parties are involved in both the original bill and the cross-bill.
Appeal dismissed.
. 253 Ala. 471.
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