¶1 (dissenting).
¶2 “If the husband, at the time of the marriage, has merely a temporary abode in the county where they live, being a resident and qualified voter of another county, and husband and wife establish no family residence facto et animo prior to the date of the election, the wife would still be a legal voter in her home town.” This was spoken in Wilkerson v. Lee, 236 Ala. 104, 181 So. 296, 298. 'Her home town would then be fixed as her residence for all purposes until another is acquired.
¶3 In this case the defendant must plead and prove facts which constitute good matter in abatement. He does not allege that the residence of complainant was not in Greene County at the time of the separation. Then we may assume that it was in that county when they were married and lived during the period of their cohabitation. Pucket v. Pucket, 174 Ala. 315, 56 *120 So. 585, was not such a case. There was no question there of a separate residence of the two spouses. I think a fair interpretation of section 28, Title 34, Code, would justify a holding that the venue could under those circumstances be laid in Greene County, her domicile, the county of their marriage, and the county where they actually spent their married life and lived at the time of their separation. I do not think it would do violence to the statute nor to Puckett v. Puckett, supra, to so hold. “It is the place where the marital contract is being performed.” 27 Corpus Juris Secundum, Divorce, p. 634, § 71, note 42. Its permanency is attested by the fact that complainant had at the time of separation her actual domicile in that county.
¶4 Neither can I agree that the finding of facts and conclusions from the evidence can be reviewed in a mandamus proceeding to justify the granting of it. I think we have gone the limit in considering the legal sufficiency of such a plea in denying the writ, as we have done. Ex parte Hale, Ala.Sup., 18 So.2d 713; 1 Rowe v. Bonneau-Jeter Hardware Co. 245 Ala. 326, 16 So.2d 689; Koonce v. Arnold, 244 Ala. 513, 14 So.2d 512.
¶5 The remedy is “not appropriate to review the action of a court in any matter involving the examination of evidence and decisions of questions of law and fact” when there is adequate review on appeal from the final judgment. 35 Amer.Jur. 30, note 14; Woodward Iron Co. v. Dean, 217 Ala. 530, 117 So. 52, 60 A.L.R. 536.
¶6 I am unable to distinguish this review from such a trial at law on a plea in abatement setting up that the defendant was sued out of the county of his residence. Suppose it were tried there by jury, — the same argument as to the advisability of such a review would apply there as here. The evidence must be certified and filed and heard as to its sufficiency as though that were for the time being the whole case, and would include all exceptions on the trial. All on mandamus. The law provides for appeals from certain interlocutory decrees in equity. This is not one, and never has been. At one time an appeal would lie as to the legal sufficiency of a plea. The legislature repealed that. We are now not only re-enacting that, but by our ipse dixit extending it to include a review of conclusions of fact on the evidence. I suppose this should also include all collateral incidents of such a trial as would obtain on an appeal from such a decree. I think that is legislating by this court and not performing a judicial function. The right to legislate does not exist in this court.
¶7 We have only granted the writ in respect to temporary matters or such as are procedural, as to which there would be no adequate review on an appeal from a final decree or judgment. It seems never to -have been supposed in any authority that an erroneous conclusion from the evidence on a plea in abatement could not be adequately reviewed on appeal from the final decree, or that it may be reviewed by mandamus prior to the final decree.
¶8 The conclusion reached cannot be based on the fact that in a divorce case there should be a different rule. We are not considering what ought to be the law, but applying what is the law. If a different rule should apply to divorce cases, the Legislature should enact the law, but this court should not do so by a judicial opinion. We can no more prescribe in that manner the procedure for appellate review in divorce cases. than in any others. If we should wish to do so, and have the power, it ought to be by rule. Our opinions and decrees are supposed to apply the law, but not to make law.