67 Ga. 423 | Ga. | 1881
The main position on which the able counsel for plaintiff in error rested his Case, is the want of jurisdiction in the superior court of Chatham county. Of course if the court had no jurisdiction, the cornerstone of the entire proceeding sinks into nothing, and all built upon it falls with it. Had the chancellor jurisdiction ? '
The case made here is an application for temporary alimony, growing out of a bill filed for permanent alimony, and if the bill for permanent alimony did not" lie for want of jurisdiction to. render a decree thereon, the sap that passes from this trunk into the branch gives no vitality to the trunk itself, and of course can impart none to the branch.
The husband and wife came to Savannah en route to Jacksonville, Florida, and there the trouble between them originated or culminated, and she was abandoned by him, without fault, as she alleges and swears on her part, and without adequate means of support. Thus she was left and compelled to make Savannah her temporary home, and as her husband was not a citizen of Georgia, resident in any county of this State, no court in this State had jurisdiction to hear and determine any cause by anybody against him, unless the defendant could be caught and .served therein. But as he was a non-resident, travelling through the state, any court of any county therein which could serve its process on him acquired jurisdiction of his person. Of the subject matter, of the question of support — of permanent alimony, and growing out of it, of temporary alimony — the judge of the superior court, sitting as* chancellor, has the jurisdiction. Whilst temporary alimony, it is true, is but a branch of the greater suit for permanent alimony, yet, in cases like this at bar it is an essential branch. Indeed, in all cases where the wife is destitute of means to support herself and maintain her suit, the temporary alimony is of the
So that, without reference to the authorities cited elsewhere by the learned counsel on both sides, our own statutes, fundamental and ancillary, and the judgment of our own highest court, unanimously rendered and equivalent te a statute until reviewed and reversed, settle the point at issue beyond controversy.
And it ought to be the law. The nature of the claim, if it be a moneyed claim, is immaterial. Whether equitable or legal, it makes no difference. The non-resident, passing through the state, resides as to jurisdiction where
Nor do we mean here to decide that the jurisdiction would attach in an application for divorce. There the policy of the law might be different, as the law itself may be. But policy as well as law is clear to the extent of showing jurisdiction for alimony in case of abandonment of a wife by her husband within this state, when he is a citizen of another. Nor do we decide whether under the act of 1870, codified in sections 1847 an<^ 1748, a proceeding for temporary alimony would not lie independently of
Therefore the case is decided as in the syllabus at the head of this opinion is set out and approved by the court, and the judgment is affirmed.
Judgment affirmed.
Cited for plaintiff in error: Code, §1747; Acts Of 1870, p. 413; Code, §1746; Cons, of 1798 and 1861; Cobb’s Digest,, 224; 25 Ga., 473; Cons, of 1868, Art. 5, §12, par. 1; (Code, §5173); Cons, of 1877, Art. 6, §16, par. 1 ; 2 Bish. Marriage and Div., (5 Ed.)par. 117, 122, 121, 125, 129, 775,
For defendant: Code, §21; 30 Ga., 440; 47 lb., 562; 2 Bish. on Mar. and Div. §§137, 142, 152, 150, 169, 170, 201, 205; 20 Ala., 629, 646-7; 37 Ala., 395; 9 Wall., 109; Code, §§1744. 1747; 1 Bish., §§738, 748; 2 Wait, 565 ; 31 Ga., 634; 36 lb., 317; 1 Bish., 725, 732, 744; 36 Ga., 318, 286; 41 lb., 46 ; 2 Wait, 594—6; 23 Am. R., 299 ; 2 Bish. 53, 55, 56, 57, 58, 63 ; 100 Mo., 150; 1 Bish., 719, note 2 ; 4 Dess., 574, 560 ; 22 Ga., 31 ; 15 lb., 97; 38 lb., 670.