¶1 (dissenting).
¶2 The only question in this case is not one of general jurisdiction of courts of equity to deal with the custody of minors or their welfare, but is purely a question of venue, about which there should be no controversy, as the statute provides, “The bill must be filed in the county in which the defendant, or a material defendant, resides; … ” Code of 1940, Tit. 7, § 294.
¶3*80 The question here is presented by demurrer to a petition or supplemental bill filed in the Circuit Court of Chilton County. Therefore, the allegations of the bill must be construed most strongly against the pleader. These allegations show that the complainant by a statutory proceeding for divorce filed in Chilton County against his wife, who was then a resident of that county, obtained a divorce on decree pro confesso and proof, and in that proceeding the question of the custody of the child, now in the possession of the mother, was not mentioned. Through the legal effect of that decree, the complainant shed all of his responsibilities to his former wife and in effect repudiated her. He showed no interest or solicitude for the baby in arms at that time. Since then the former wife, probably through necessity, has acquired a permanent residence in Autauga County ánd according to the averments of the bill, has the rightful possession of her infant child. The final decree terminated the statutory and limited proceedings for divorce (Martin v. Martin, 173 Ala. 106, 55 So. 632,), and after the lapse of thirty days from the date of rendition of that decree, ordinarily became final and conclusive as between the parties, as though the court had adjourned for the term.
¶4 The following cases cited in the majority opinion are inapt and without influence in this case, as the question of venue was not a question at issue in any of these cases. So far as appears both parties to the litigation lived in the same county, and in each of said cases the bill was an original bill, not a supplemental proceeding to any other case. Bridges v. Bridges, 227 Ala. 144, 148 So. 816; Brown v. Jenks, 247 Ala. 596, 25 So.2d 439; Barker v. Byars, 245 Ala. 223, 16 So.2d 504.
¶5 The power invoked by the bill in this case is not the statutory and limited power of a court of equity in connection with divorce, but is the general common law equity power exercised by courts of chancery in the interest of minors, wards of the state. The statute which prescribes the venue of such actions is for the benefit of the defendant and to prevent the defendant from being hauled from one part of the state to another to litigate with a complainant. She had a right to be sued in the county of her residence, if she had a permanent residence. This right is guaranteed by the statute — the law of the State of Alabama. The case most nearly in point recently decided is Ex parte Davis, 249 Ala. 221, 30 So.2d 648.
¶6 In my judgment the demurrer to the supplemental bill was due to be sustained and the court erred in overruling it. I, therefore, respectfully dissenh