BARRINGTON v. BARRINGTON

(77 South. 711) BARRINGTON v. BARRINGTON. (3 Div. 334.) (Supreme Court of Alabama. Jan. 17, 1918.) 1. Divorce <&wkey;104r — Right to Amend Bill before Final Decree — Statute. . Under Code 1907, § 3120, as to amendments b.efore decree on terms, complainant in a divorce suit had the right to amend her bill at any time before final decree. 2. Equity <&wkey;148(3) — Inconsistent Relief in Alternative — Amendment to Bill — Statute. Under Code 1907, § 3095, providing that a bill is not multifarious which seeks alternative or inconsistent relief growing out of the same subject-matter or founded on the same contract or transaction in a divorce suit, if complainant’s amendment to her bill sought inconsistent relief in the alternative, the amended bill was not demurrable if arising out of the same transaction or subject-matter or relating to the same property between the same parties.' Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. Bill in equity by Mary W. Barrington against R. L. Barrington, for divorce. From a decree permitting amendments to the bill, and overruling demurrer to the amended bill, respondent appeals. Affirmed. See, also, 200 Ala. 315, 70 South. 81. The original bill alleged, in substance, that oratrix, without support from respondent, had. lived separate and apart from bed and board of the said R. L. Barrington since January 12, 1911, the same being for five years next preceding the filing of this bill, and that she had been a bona fide resident of the state during that entire time. "The amendment was by adding paragraph 4, which alleged that said R. L. Barrington did, more than two years next preceding the filing of this bill, voluntarily abandon the bed and board of this complainant. Motion was made to strike this amendment because it states an entirely new cause of action, works a departure, and is inconsistent and repugnant to the case made by the original bill. The cases cited by appellant are Ex parte A. C. L. R. R. Co., 190 Ala. 132, 67 South. 256; 1 Bisk, on Marriage and Divorce, 101; Rapier v. Gulf City Paper Co., 69 Ala. 481; Winston v. Mitchell, 93 Ala. 559, 9 South. 551; Truss v. Miller, 116 Ala. 504, 22 South. 863; N. C. & St. L. v. Garth, 155 Ala. 311, 46 South. 583. T. J. Dowdell, of Montgomery, for appel-' •lant. Tilley & Elmore, of Montgomery, for appellee. [MAJORITY — ANDERSON, C. J.] ANDERSON, C. J. The complainant had the right to amend her bill at anytime before final decree. Section 3126 of the Code of 1907. The amendment was not inconsistent with or repugnant to the original bill as it sought the identical relief as the original bill, but if it sought inconsistent relief in the alternative, it would not be demurrable, if it arose out of the same transaction or subject-matter or related to the same property between the same parties. Section 3095 of the Code of 1907. Durr v. Hanover Bank, 170 Ala. 260, 53 South. 1012. The cases cited by appellant’s counsel are in no sense contrary to the present holding, or were decided previous to our present statute authorizing inconsistent relief. The decree of the circuit court is affirmed. Affirmed. McClellan, Gardner, and thomas, JJ., concur.