The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1908-12-08
DECISION IN
DIVORCE SUIT
Supreme Court Passes Upon
Case Appealed From
Duval County.
specIaI. to Ths iournaI.

Special TO The journal.
Tallahassee, Dec. THE supreme
court Of Florida has passed upon the
Wood divorce case, appealed from Du
val county. the decision being as fol
lows:
In the Supreme Court of Florida,
Division A. June Term, A. d. 1908
Walker j. Wood, appellant. VS.. Capt.
tola L. Wood, appellee. Duyal county
Whitfield, ].
l. Where one of the parties is &C
tually and bona fide domiciled in this
state, as citizen thereof, the chan
Gerry courts have jurisdiction TO en-
force the duty of maintenance and
support due from the husband to the
wife by awarding alimony, particular.
~ where personal service is made
upon the husband within this jurisdic
tfOn. Two years residence of the
complainant is not required as when
the proceeding is ancillary to suit
for divorce.
2. Where a bill of complaint con-
tains allegations with exhibits that
are not essential to the relief prayed.
but which do not destroy the effect oil
the material allegations in stating a
cause of action, such non-essentials
may be treated as surplusage.
8. The tendency of divorce pro-
ceedings between the parties in an
other state does not prevent the en-
forcement of alimony rights In this
state.
4. In suits for alimony the mar
~ aIotf hot he
should in general be made to appear
mission before reference to master
is made for the purpose of taking tes-
timony as to alimony, suit money and
counsel fees, since IL the marital rela-
ton does not exist the defendant is
not liable.
5. In suit for alimony where the
bill alleging the marriage is sworn to
and the defendant is notified of, and
is heard by counsel. upon the appli-
cation for a reference to a master to
take testimony as TO temporary ali
mony and counsel fees, and the de-
PENDANT testifies before the master
without calling in question the exist
ence of the marriage relation, he can
not complain of the reference to a
master before demurrer or answer
filed since the marriage prima facie
appears.
6. In proceedings for temporary all
mony and suit money justice demands
some degree of expedition; and where
the defendant is notified of an appli'
cation for the taking of testimony as
to temporary alimony and suit money,
he should reasonably present ques-
lions as to tire existence of the mar.
riage relation between himself and
the complainant. where that relation
prima facie appears
z. As a general rule and in the abb
sence of controlling statutes or rules
of court an adult married woman sues
by next friend when property or per-
sonal rights are involved; and the
next friend may properly be the hus-
band when the suit as againsts third
parties
s. Where suit is brought by a mar
ried woman against her husband to
enforce some personal right of hers
against him, such as divorce or ali
mony, not involving trusts or title to
or management of property. it is in
general not necessary that she sue by
next friend.
8. Overture does not prevent a
wife from enforcing by suit in equity
in her own name her rights as
against the husband, at least where
such rights do not involve matters as
to which the wife as such may be dis
qualified to act for herself, such for
example as trusts, or the management
or transfer of property
10. A married woman sues by next
friend to secure the costs or for con-
venience merely, where the wife is not
to act for herself in the
matter sued upon.
II. In suits for alimony the right
of the wife is personal to herself; it
does not ordinarily involve any trust,
or the management or transfer of
The right to alimony grows
out of the marriage status, and is for
the personal sustenanee of the wife
which she Is able to apply without the
of a next friend or a
trustee.
IL. In a proceeding In equity for
when the marriage status is
prima facie established by admission
or proof, the court has the power to
require the husband to provide tenn
porary alimony and suit money for
the wife, to enable her to cope with
him in the litigation.
Is. There may be cases in which
the suit OF married woman against
her husband should be by next friend
to protect her interests or to secure
the payment of costs: and the court
will take care that he rights of the
woman involved in litigation
be properly protected whether she
sues by next friend or in her own
name alone.
Il. The rules OF procedure seem to
contemplate suits in the name of the
wife alone for alimony and they have
been uniformity SO brought in the
courts of this state.
Is. A demurrer and not a motion
TO dismiss is the proper method of
reaching defects of parties if any ap-
parent upon the face of bill of COM
plant in equity.
16. Where there is testimony to
sustain an Older granting temporary
and counsel fees the order
may not be disturbed.
DEGREES aud orders affirmed.
Young & Adams. for appellant.
y. P BRYAN and Geo. u Walker, for
appellee
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