*1 353 it was ruling In the fourth division commission’s Atlanta required subsidy that a substantial found at energy plant the total operate to construct and Gas an ef Center, possibly that have Peachtree could money thereby affect its rates fect on its cost of is finding assigned other customers State. This error. to that At- evidence the commission find
The authorized to- very has substantial investments its lanta Gas made given general system. The commission energy tal Code Ann. 93-307. power gas companies. over supervisory investigate the possibility The commission is authorized to to of Atlanta Gas impairing obligation of the contract v. Public Ga. Power Co. discharge public its duties. Ga. 223, 228, Commission, supra. 211 Ga. Service on the order of the The constitutional attacks made theory the com are on the that predicated commission all At contract of regulate private to a attempting mission is public which a interest. Since not affected with lanta Gas under present proposed that we have determined in a total supply energy electrical taking of Atlanta Gas interest, public matter affected with energy service is a merit. attacks are without constitutional finding trial not err in the order did judge by the evidence and not sub supported the commission was Gas, and declara made Atlanta ject to the attacks relief be denied Atlanta Gas. tory injunctive should concur, Felton, except All the Judgment Justices affirmed. J., disqualified. BICKFORD.
26711. BICKFORD v. September 5, 1971 16, 1971 November Submitted Decided Rehearing 18, 1971 and denied November 16, 1971.
December *2 McClelland, Jr., Wayne Jernigan, for appellant. Ralph J. Hall, Jr., Harry J. M. Westmoreland, Bryan, & P. Hall Crawford, appellee. alimony proceeding and This is a divorce Justice.
Grice, as error the follow- wife enumerates appellant in which the (1) collection injunction prohibiting the trial court’s ing: (2) award; with reference an order temporary her (3) of her the denial appeal; and upon to the record for new trial. amended motion in the Lewis Bickford filed Richard A divorce suit was Bick- County Betty Lewis against of Fulton Court Superior The wife insti- treatment. of cruel upon ground ford seeking temporary permanent counterclaim tuted a pursuant their four minor children alimony for herself and awarding of Florida State previous her. custody their had re- parties between these Florida litigation property as to division agreement in a separation
sulted and decree of being made the support and child the matter provided The decree also the Florida court. later date and until a alimony for the wife was reserved time de- the court at such as she petition might that she alimony. sired to his divorce suit counterclaim response to the wife’s por- moved to strike those County, the husband Fulton temporary complaint requesting
tions of subsequently attorney’s This motion alimony fees. entitled Florida decree was denied on the order the By in this another faith and credit state. to full children, support child custody wife awarded the Florida de- with accordance provisions other stated alimony. The child cree, temporary a month as and $150 support is not issue this appeal.
When the instant case was called for trial the wife moved for a upon continuance grounds to be referred to hereinaf- ter. The motion was denied.
Upon the jury trial returned a granting husband a It divorce. also awarded to the wife as detailed later.
Judgment was entered accordingly.
Thereafter the wife filed a motion for new trial which general asserted the grounds.
While motion was pending, the trial court enjoined garnishment proceedings by which the wife was attempting to collect instalments of her temporary alimony which were in arrears.
Subsequently, the motion for new trial was amended to include five grounds to be referred to hereinafter. mo- This tion was denied.
Upon court, appeal to this additional portions of the rec- *3 ord relating to the amended motion for new trial were ordered to be transmitted. it,
As we appraise the enumeration complaining of the injunction prohibiting the wife from collecting instalment payments of temporary alimony through garnishment pro ceedings is valid.
The fact the final judgment rendered had not awarded to the wife periodic payments permanent ali- mony not ground for not requiring husband to con- tinue the temporary alimony payments pending final determination of the case. this,
With respect to
this court has held that "Where a
judge,
discretion,
the exercise of his
has fixed and al-
lowed temporary alimony
pending
cause for divorce and
or for
alimony, the right to the amount
allowed becomes absolute until
the final determination of
cause,
unless in the meantime the allowance be revoked
by
or modified
the judge.
Patterson,
Gibson v.
The with reference to the enumeration relating grounds additional record to the amended of the passed upon. motion for new trial will not be That issue is now on file in court. moot since the record desired is this complaining We now consider the enumerations denial of the wife’s amended motion for new trial.
(a) erred in refusing One claims that court continuance of the trial for grant request wife’s at request upon least two weeks. This was based counsel’s injuries, absence of a material witness physical illness interrogatories and the existence of unanswered served the husband. upon find no feature.
We abuse of discretion as days court rescheduled trial of the case for six later. From the trial it transcript proceedings, apparent attorney very effective provided representation. wife’s We therefore conclude that the wife was not harmed failure to the two grant postponement. weeks
The other two for continuance were argued in this court and are deemed to have been abandoned.
(b) requires A consideration of the evidence the conclu- *4 in testimony conflicting sion that while the is several par- ticulars, evidence, the amply supported by the general and therefore the of the motion for new grounds trial are not meritorious. the award of the the
Insofar as divorce to husband is concerned, there evidence that the separation was sufficient was the of the cruel result wife’s treatment. There was tes- timony to her nagging, fussing harassing hus- band, particularly acquaintances toas his business and the business, conduct of his accusing and of her him infidel- ity insisting that he ill. mentally alimony,
As to the award of there was sufficient evidence jury’s award, sustain the into taking consideration the needs of the wife ability and the to pay. husband’s
(c) ground Another contends in essence that when the husband on testified the issue of the cause separa- tion, he stated his with a relationship named divorcee was business-connected and that had he no intention of her, marrying whereas an attached certificate of marriage of the husband and this shortly woman after the trial shows that real of the separation cause their im- proper relationship, not the wife’s cruel treatment. ground
This cannot newly be sustained. The discovered evidence relied upon here is merely impeaching charac- ter. It seeks discredit the testimony husband’s toas relationship existing between him other person. See Code 70-204. §
(d) grounds One of the relates to the husband’s contention the wife’s alleged cruel treatment with interfered his business, resulting in being his asked to leave. Attached to this ground is an affidavit of one of his former business partners. The affidavit recites that the cause of this was disagreement between the partners husband and other and that the wife’s had alleged nothing interference to do with it.
This evidence merely is likewise impeaching character regard to husband’s It testimony subject. 70-204, prohibited Code supra.
Furthermore, reason, for the same this affidavit cannot be considered on issue of the husband’s finances deter- alimony. mining The facts and figures provides which it seek to testimony contradict husband’s as to this.
This is not meritorious. f) (e, Two relate to the content *5 358 may together. be treated
verdict divorce, the husband a substance, granted the home, their the awarded her alimony for the wife and as therein, property other automobile and an property personal keep ordered to Rochester, The husband was in Minnesota. re- The verdict also policies. life in force certain insurance court for petition to right wife "retain the that the cited at date.” a later cash in not reached the verdict was avers that
One proper upon legal principles with sound accordance court. It charge of the of the evidence consideration of other considerations the verdict was result urges that that in of fact ignorance it rendered and that was legally to it could not be intentions with reference jury’s affidavit of the out, by an attached carried all as shown jury. forewoman urges that for this reason ground of the motion
The other contrary are to law based thereon the verdict aside. and should be set here, affidavit, necessary recited to recount insofar as divorce and at their verdict as to both jury
how the arrived jurors opinion were of the that alimony. It averred that in earnings for increased great potential the husband had re- have the to right and that the wife should the future regular monthly and for for modification and revision apply future. It further that at some time stated payments they that view but were returning expressed the verdict they awarded the aware of the rule of law that unless monthly be or paid wife some amount of to instalments, right re-ap- she would have no such other if declared that in the future. The affidavit plication they aware of this would have awarded jurors had been monthly alimony paid to be cash. wife some amount of affidavit, it to the ver- As we view this seeks show of law. How- reached the result of a mistake dict was ever, sought by request no for further instruction the court charge gave and the which jury as to this feature full and correct. attempt juror This constitutes an of a impeach verdict. This cannot be done. Code 110-109 provides "The affidavits jurors may be taken to sustain but not to impeach their verdict.” The affidavit here cannot be said to sustain that verdict. This a plain example of an attempt by one juror impeach the verdict of the twelve. To relax salutory rule would erode the stability by jury of trial finality and the litigation.
For these reasons this is not maintainable.
In consideration the foregoing of enumerations of error we conclude that the trial court was in in enjoining error the collection of the temporary alimony, but was correct denying the amended motion for new trial.
Judgment injunction; reversed as to as to motion affirmed concur, new trial. All Hawes, J., the Justices except who for specially. concurs Justice, concurring specially.
Hawes,
I concur in the
case,
of affirmance in this
but not in
rulings
made in Division 3 of the
with
opinion
respect
grounds
to
(e)
(f)
referred to as
of the motion
a
for
new trial. I do
solely
so
because of the full-bench ruling of this court in
(110
(1)
Zuber,
370),
case of Zuber v.
recover subject mat- jurisdiction divorce and judgment of alimony dependent exis- permanent ter a suit for the time the action is insti- marital relation at tence of the However, rules do not bar defendant from these tuted. at the she alimony awarded this case because time being relation had alimony the marital action for instituted her court, case, speaking In the Zuber been severed. not from 27A Mobley, quoted approval with through Justice granted be 1024, "Alimony may §231, as follows: CJS divorce, it if the to have subse- right after a decree therein, provided applica- reserved quently determined is has stale.” the action become therefor is made before tion There, case, the had instituted action as in this wife final, became and in alimony before the divorce 28, court, 1953, the on September decree rendered divorce from that substantially different embod- language case, jurisdiction and in this retained ied decree question permanent "a later date” the reserved until thereafter, His on Decem- support. right 5, 1953, *7 judgment render ber stale in the had not become Certainly, action upheld. permanent ali- applied defendant for case when the this The adduced the trial this case mony. evidence on money amount of the award of some ample authorize no new alimony to the wife and payments of periodic received be- hearing be had or additional evidence need Dobson, 223 made. See Dobson v. fore such an award is (156 72), plaintiff and cits. The husband Ga. 432 SE2d the the of the verdict at time having objected to form judge the trial thereby pass- it was rendered consented to be what amount of should ing on the issue of decide at this time at a later date. We need not awarded ruling a if the defendant fail invoke should ali- some amount of court granting trial final of this court becomes mony judgment until after the of laches. principles she would be barred under the whether from the view, may judgment such a my she still invoke judg- court, opinion mold its and this court should trial right. bar that may not construed to they be ment so et al. BARNETT v. HOLLIDAY 26742. 7, 1971 September 15, 1971 October
Submitted Decided 18, 1971. Rehearing November denied appellant. Thompson, Lawson E. Hardin, appellees.
Walton question appeal The substantial Justice. Grice, to the land dis- title plaintiffs established whether in their fa- to sustain verdict pute so as vor. Superior filed arises from a suit question
This Wright B. by Holliday and C. County G. 0. Court of Wilkes Barnett, injunctive relief to restrain seeking M. H. against plaintiffs alleged 17-acre tract which upon trespass plain- denied that answer The defendant’s they owned. trespassing that he was all this tract or tiffs owned actually approx- over whether controversy is their land. The of the 17- portion two are southeastern imately acres or in the northeastern by plaintiffs, claimed acre tract remaining defendant. The by claimed of a tract portion involved in is not parties owned of the land portion this case. general on the for new trial defendant’s motions were notwithstanding
denied, rulings. from those appeal *8 Ap- the case to the Court transfer
1. The motion to one equity case and also this is an is denied since peals of the Constitu- purview within the title to land involving 2-3704). (Code Ann. tion