184 Ga. 827 | Ga. | 1937
On May 2, 1936, pending a divorce suit, the husband, Columbus Lawrence Brown, was by the judge ordered to pay his wife ten dollars per month as temporary alimony. On June 5, 1937, she presented to the judge her petition in which she recited the filing of her suit for divorce, custody of the child, and permanent and temporary alimony, and the hearing which resulted in the order aforesaid; and she alleged that instead of making full payments, which would have totaled $120, the husband had paid nothing for some months, and in other months only five, six, or eight dollars, or a total of $71. She prayed for a rule nisi calling on the husband to show cause why he should not be adjudged in contempt of court for his failure and refusal to comply with the previous order of court. A rule nisi was issued, and a response thereto was filed. After hearifig evidence the judge ordered as follows: “1. That the allegations of the petition have been proved. 2. That the respondent, Columbus Lawrence
As we construe the order of the court on which error is assigned, it is not a case where the judge was modifying his previous order fixing temporary alimony, and did not involve the exercise of any discretion on the part of the court. There is nothing in the order granted by the judge that indicates that on account of any change in the condition of the parties or either of them, or for any other reason, he had concluded that the husband ought not to pay alimony. Nor do we gather from the record that the judge refused to commit because he did not think that the husband was in contempt. The order expressly finds that the respondent “has not shown cause why he should not be adjudged in contempt of court for his failure to comply with the court’s order of May 2, 1936,” etc., and bears no other reasonable construction than that the only reason why the husband is not adjudged in contempt and committed to jail is because the wife states that she is unable to pay the jail fees incident to such imprisonment; the court feeling constrained not to send him to jail in view of the decision of the Supreme Court of Georgia in the case of Justices of the Inferior Court v. Bivins, 6 Ga. 575, to the effect that the county is not liable for such jail fees. So we are met face to face with this question: Is the express provision .of section 30-204 of the Code, that an order allowing temporary alimony may be enforced by attachment for contempt against the person of the husband, rendered unavailable when the wife who brings the rule states that she is unable to pay the expense of the jail fees incident to the im
The Code of 1863, § 3647, contained the fee bill for jailers. Instead of the language which Judge Warner had before him in Justices v. Bivins, supra, “Dieting prisoners, per day,” etc., and which the court construed to mean “prisoners charged with crime,” our first Code reads as follows: “For dieting prisoners confined in jail on any ground whatever.” This change in the prior law seems to have been made by the original codifiers, and was not brought about by any statute. There are no marginal annotations. In a most interesting paper on the History of the First Georgia Code, read before the annual meeting of the Georgia Bar Association in 1890, Judge Eiehard H. Clark, one of the codifiers, tells us that in the division of the work he was assigned “the Political and Public Organization of the State.” Said he: “I found the laws touching our county organizations defective. . . I made many new regulations. . . Wlieuever necessary, I did not hesitate to make new legislation for the ordinary, the clerk of the superior court, and the county sheriff; and I even laid my hands on the justices of the peace and constables. . . Such new laws can be told by the absence of marginal annotations. As a general rule, throughout all the parts, if there is no such annotation it is statutory law for the first time, by the Code.” It is fair to assume that the change was made deliberately and in view of the decision in Justices v. Bivins, supra. The alteration has been carried forward in every succeeding Code, that of 1933, § 77-103, prescribing what fees jailers are entitled to, reading in part as follows: “Dieting prisoners confined in jail on any ground whatever, such fees as may be fixed by the ordinary, or other authority having charge of county affairs, of the county, who is hereby invested with the power to fix said fees.” The ruling in Justices v. Bivins, supra, will no longer be followed, in view of the modification of the statute on which it was based.
Judgment reversed.