Summary
relying upon Campbell in rejecting propositions that a divorce action by and through a guardian "cannot be maintained" and that "there can be no voluntary assent to the proceeding by a person of unsound mind"
Summary of this case from W.W.H. v. D.L.H.Opinion
6 Div. 356.
March 13, 1952.
Appeal from the Circuit Court, Blount County, J. S. Stone, J.
Nash, Nash Starnes, Oneonta, for appellant.
In the absence of statute so authorizing, an insane person cannot bring an action for divorce, nor can his guardian, committee or next friend bring such action in his behalf. Scott v. Scott, Fla., 45 So.2d 878; Mohrman v. Kob, 291 N.Y. 181, 51 N.E.2d 921, 149 A.L.R. 1274; Johnson v. Johnson, 294 Ky. 77, 170 S.W.2d 889; Stevens v. Stevens, 266 Mich. 446, 254 N.W. 162; Worthy v. Worthy, 36 Ga. 45, 91 Am.Dec. 758; 17 Am.Jur. 290; 27 C.J.S., Divorce, § 89, p. 672; 70 A.L.R. 964; 19 A.L.R.2d 182; Spencer v. Spencer, 254 Ala. 22, 47 So.2d 252; Crenshaw v. Carpenter, 69 Ala. 572, 64 Am.Rep. 539. The case of Campbell v. Campbell, 242 Ala. 141, 5 So.2d 401, is opposed to the weight of authority.
Johnson Randall and J. T. Johnson, all of Oneonta, for appellee.
A person of unsound mind, suing by his legal guardian, may maintain suit for divorce on any of the statutory grounds. Campbell v. Campbell, 242 Ala. 141, 5 So.2d 401.
This is an appeal from a decree of the equity court overruling the demurrer to a bill seeking a divorce from the bonds of matrimony. The complainant Onus Hopson (appellee) is a person of unsound mind and sues by his legal guardian L. P. Waid, Jr. The respondent is his wife Lula Jane Hopson (appellant) and the basis of the action is her voluntary abandonment of the bed and board of the complainant.
The demurrer attacks the bill on the theory that the right to maintain the suit is of such a strictly personal nature that it must of necessity remain personal to the spouse aggrieved by the acts and conduct of the other and, therefore, the suit cannot be maintained because there can be no voluntary assent to the proceeding by a person of unsound mind.
The exact question was passed on by this court in the case of Campbell v. Campbell, 242 Ala. 141, 5 So.2d 401. Upon a careful consideration we are not willing to depart from the holding of that case.
It results that the decree of the lower court must be affirmed.
Affirmed.
All the Justices concur.