15 S.E.2d 868 | Ga. | 1941
1. The verdict in favor of plaintiff for a divorce is supported by evidence. The special grounds complaining of portions of the charge and of failure to charge relating to the evidence are without merit.
2. Where in a suit for divorce by the husband the wife prays for alimony, and a verdict is rendered in favor of the plaintiff for a divorce and in favor of the wife for alimony, and the verdict for divorce is supported by evidence and free from errors of law, it is not error to overrule the wife's motion for a new trial as it relates to the divorce while granting a new trial on the issue of alimony.
3. Where the wife institutes her action for permanent alimony at a time when the marital relation exists, but subsequently the husband is granted a divorce, the court retains jurisdiction of the alimony proceedings, and the divorce of the husband in such circumstances does not bar the wife's right to alimony.
The defendant denied all charges of cruel treatment and misconduct, contradicted generally the material parts of the plaintiff's testimony, and testified to his cruel treatment of her and his own misconduct. The jury rendered a verdict in favor of the plaintiff for a total divorce, removing the disabilities of the defendant, and in her favor for $25 per month as alimony for a period of twelve consecutive months. Decree was entered accordingly. The defendant moved for a new trial. The exception is to the following judgment: "Upon a hearing after argument, it is ordered and adjudged that the motion for new trial, in so far as it refers to a divorce, is overruled, and the second verdict of the jury finding for a total divorce is affirmed. So much of said motion for new trial that refers to alimony, the same is granted and a new trial is ordered on the question of permanent alimony." 1. The evidence supported the verdict in favor of plaintiff for a total divorce. Exceptions relating to the charge to the jury on cruel treatment, and to the charge on the question of granting the right to remarry, and complaining of the failure to charge that when both parties are equally at fault no divorce should be granted, are controlled by the evidence, and are without merit. The judgment overruling the motion for new trial on the divorce issue is affirmed.
2. It is contended that the judge was without authority to split the verdict and order a new trial on the defendant's application for alimony. While we have not found where this court has heretofore ruled upon a similar question in a case of divorce and alimony, we think the principle involved has been decided. InMcCarthy v. Lazarus,
3. The plaintiff in error contends that if the judgment granting a divorce to the husband is allowed to stand, it will constitute a bar to the wife's right to recover a judgment for permanent alimony against him. In support of this contention she cites Joyner v. Joyner,
Judgment affirmed. All the Justices concur.