Two enumerations of error present the contention that the evidence submitted upon the trial failed to establish the necessary jurisdictional facts and hence the decree and judgment entered in the case were void. The burden is upon the plaintiff in every divorce case to plead and prove jurisdiction of the suit.
Stewart v. Stewart,
Attached to the petition for divorce was an agreement of the parties to the cаse that the defendant and the plaintiff were both residents of Jeff Davis County, the situs of the suit. The plaintiff’s undisputed testimony was that for a longer period than six months prior to June 25, 1964, the date when the suit was filed, she and the defendant had resided as husband and wife in Jeff Davis County. She further testified that on June 25, or 26, 1964, she left the county, departing for Jacksonville, Florida, obtained employment in that city and has resided there ever since. The proof having shown both the plaintiff and the defendant were residents of Jeff Davis County on June 24, 1964, we must apply the rule of the presumption of continuity as held in
Sears, Roebuck & Co. v. Wilson,
Other evidence of the court’s jurisdiction was that the defendant made a general appearance and invoked the judgment of the Jeff Davis Superior Court on the issues of the case. In
Tate v. Tate,
An enumeration of error complains the judge unduly restricted the cross examination of the plaintiff when she appeared
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as a witness. The first instance in which it is insisted a thorough and sifting cross examination as provided by
Code
§ 38-1705 was denied occurred when counsel for defendant had propounded questions and the witness had made answers as follows: “Q. You say that he accused you of every man in Hazlehurst. . . Name one of them? A. Well, after we were separated he accused me of Roscoe Floyd. Q. All right, who else? A. That’s the only name after we separated; in fact before we separated it was just going out and different men, he never named any particular оne. Q. Was there anybody besides Roscoe Floyd? A. He didn’t call any other names. Q. I believe I understood you to say a moment ago that he accused you of a greater part of the men in Hazlehurst? A. This is true. Q. All right, who else besides Roscoe Floyd did he accuse you of? A. He didn’t call any names. Q. Well, you think a minute and take all thе time you want. A. I don’t need no time. Q. Were there any other names besides Roecoe Floyd? A. Not particular, no. Q. Well, anyone particular then? A. He just accused me of men in general. Q. Well, what men?” At this point counsel for the plaintiff interposed the objection: “Your Honor please, she has answered that question, and it’s sufficient probing there.” The judge ruled: “I sustain that objection, don’t ask that question again.” The rule is that a trial judge may “restrain useless and unnecessary repetition of questions which have been asked and fully answered.”
Clifton v. State,
The second instance was when the рlaintiff testified that she on an occasion borrowed money from a man. Counsel for the defendant asked her the question: “Have you ever borrowed money from J. T. Dean?” The objection was made that the evidence sought was not relevant. The court requested defendant’s counsel to “state the purpose of this line of testimony.” Counsel replied: “The things we would want to know, one thing would be testing of memory. . .” The judge sustained the objection “to that phase of it.”
In support of this alleged error the appellant cites
Becker v.
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Donaldson,
Other enumerations of error complain that named witnesses who refused to answer questions propounded to them on the ground that to answer the questions might tend to incriminate them and might tend to hold the witnesses and their respective families up to disgrace and public contempt were not rеquired to answer the questions. The questions propounded undertook to elicit from each of the witnesses whether they had seen the plaintiff in the company of other men. The witnesses testified they were married men.
Familiar is the language of the Fifth Amendment to the United States Constitution
(Code
§ 1-805) and Art. I, Sec. I, Par. 6 of the Constitution of this State
(Code Ann.
§ 2-106), which read respectively: “No person . . . shall be compelled in any criminal case to be a witness against himself”, and “No person shall be compelled to give testimony tending in any manner to criminate himself.” The Georgia statute provides: “No party shall be required to testify as to any matter which may criminate or tend tо criminate himself, or which shall tend to work a forfeiture of his estate, or which shall tend to bring infamy or disgrace or public contempt upon himself or any member of his family.”
Code
§ 38-1205. See
*385
Code
§ 38-1102. It has been held: “When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate thе witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it
may
criminate himself, then
he
must be the sole judge what his answer would be. The court can not participate with him in this judgment, because they can not decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privileges which the law allows, and which he claims. It follows necessarily, then, from this state of things, that if the question be of such a description that the answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say, upon oath, that his answer would criminate himself, the court can demand no other testimony of the fact.”
Empire Life Ins. Co. v. Einstein,
For the trial judge to hаve permitted inquiry in open court, or even in the presence of counsel, concerning the circumstances of the occurrence in question in order to ascertain whether answers to the questions would tend either to incriminate the witnesses or hold them and their families up to infamy, disgrace or public contempt would have deprived them of the protection of the Constitutional guarantees and the benefit of the previously quoted statute.
We have carefully considered the authorities cited by the ap
*386
pellant and find they do not authorize a different conclusion than that we have stated. The pronouncemеnts of
Kelly v. State,
An enumeration of error complains that the judge erred in recharging the jury “as to the first verdict” disclosed to be repugnant as follows: “Gentlemen, as the verdict now reads you have returned a verdict which is what we call repugnant, you cannot grant each party a divorce; if you grant the plaintiff a divorce, that would mean that the husband could re-marry. Now I am not telling you in favor of which party to find, but I am telling you that you cannot find a divorce in favor of each party, you must find for the plaintiff on the issue of divorce, or for the defendant on the issue of divorce. Of course if you fоund for the defendant on the issue of divorce, that would mean that you could not award the wife alimony.” The jury had returned to the courtroom with a verdict reading: “We the jury grant total divorce for both parties. We grant $100 per month for child to be paid monthly, beginning Oct. 1, 1965, and until child becomes of age or self-sustaining. This to be paid to сustodian of child. We grant $50 alimony to the plaintiff per month beginning Oct. 1, 1965.” The brief of appellant complains the charge was not correct as an abstract statement of the law and that the court intimated an opinion as to the verdict the jury should return.
There is no question that where a verdict is repugnant and void the triаl judge has the duty to resubmit the case to the jury in order that they may decide whether a legal verdict can be agreed upon. It is held in
Reagan v. Reagan,
The third enumeration of error alleged: “the final order and judgment of divorce entered up by the court on the 1st day of October, 1965”; and the fourth enumeration of error is: “the verdict and judgment was contrary to the evidence, without evidence to support it and the evidence demanded the verdict and judgment against a divorce for the plaintiff.” The appellant’s brief insists the court erred in transferring to the juvenile court the issue of who should be awarded custody of the parties’ minor child. No authority is cited to sustain the position that thе superior court judge could not transfer the case to the juvenile court for determination of the issue of the child’s custody.
The Act of 1951 (Ga. L. 1951, pp: 291, 298) as amended (Ga. L. 1957, pp. 617, 618), embodied in
Code Ann.
§ 24-2409 (2), provides: “Courts of record in handling divorce or habeas corpus cases involving the custody of a child or children, may transfer the quеstion of the determination of custody and support to the juvenile court for investigation and report back to the superior court or for investigation and determination.” See
Slater v. Slater,
The question of the sufficiency of the evidence tо sustain the verdict and decree must be resolved by an examination of the record. The evidence was in sharp conflict with reference to every issue of the case, except jurisdiction, and would have war *388 ranted a verdict and decree in favor of either party. Hence, the complaint that it did not suрport the verdict and judgment in the appellee’s favor can not be sustained.
In this connection, we have considered the appellant’s contention that the agreement entered into by the parties constituted a consent that a divorce be granted and amounted to a collusion which barred the action. We do not so interpret the document. It merely recited the fact that the suit was about to be filed, agreed upon division of property, the custody of their child, waived service of the suit, agreed for a trial of the case at the first term of the court and merely requested the court to approve the marriage settlement agreement. Thus, it appears that none of its provisions amounted to consent for divorce, or collusion.
We finally consider the second enumeration of error. It alleges: “The order and judgment of the court dated October 1, 1965, awarding custody of the child to the plaintiff reserving jurisdiction of the matter in the court.” The evidence concerning this issue was all adduced upon the trial in the superior court. The judgment of the juvenile court recites: that counsel for the plaintiff and the defendant stated that there was no new evidence, and that a court order should be based upon the record and evidenсe in the superior court proceeding.
The evidence submitted created a grave doubt as to which of the parties, or whether either of the parties, was a suitable person to rear the child und as to what was for the best interest of the child. But the evidence was not so conclusive as to demand an award of custody different from that made by the juvenile court. Consequently, the award of custody to the appellee will not be disturbed by this court.
Judgment affirmed.