128 Ga. 654 | Ga. | 1907
(After stating the facts).
The great weight of the testimony here was to the effect that the plaintiff shamefully mistreated her husband, threatening to kill him, using physical violence upon him, and employing such foul, indecent, and profane language to him in the presence of his children by a former marriage, and in the hearing of neighbors and other members of the family, as to shock the moral sense of decent people. The testimony also indicated that, instead of being driven from home by her husband, she attempted to aggravate him into striking her, for the avowed purpose of using his> conduct against him in a suit for alimony; and that, failing in
In Hawes v. Hawes, 66 Ga. 142, a husband and wife agreed that, she should stay at her sister’s and he would support her and “do what was right.” She brought suit against him for alimony. The court held that this constituted a case of voluntary separation within the meaning of the code. In the opinion Crawford, J., added: “Had this agreement never been made, and he had stood upon his legal rights and obligations under the other facts of the case as disclosed by the record, his liability would have been governed by section 1740 [now 2460] of the code, as construed by this court in 38 Ga. 663.” In Glass v. Wynn, 76 Ga. 319, in the first division of the opinion it was declared that “The evidence is distressingly conflicting in respect to the party whose fault caused the separation, hut this court defers to the judgment of the court below thereon, it being of opinion that there is evidence enough to sustain the judgment against any idea that he abused his discretion; and so in respect to the treatment of the wife by the husband the testimony conflicts, and we must adjudicate all these decisions on facts where they are thus uncertain in the same way.” Discretion in deciding the question necessarily involves the power to decide it either way, if the evidence so authorizes it. In the next division of the opinion it was said that the act of 1870 declares that this procedure may be had at the instance of the wife, when husband and wife are living separately, or are bona fide in a state of separation, there being no action for divorce pending; and the cause before the court was held to fall within the provisions of that act. It is true that the able Chief Justice who delivered the opinion made use of the expression, “and, in our judgment, it is immaterial what brought this separation about;” and that he also said, “We do not see that Hawes v. Hawes conflicts with this view of the section; if so, the remark is obiter.” In the third division of the opinion it was said that, “Even if there must
In the present case there was no abuse of discretion in the order granted by the presiding judge.
Judgment affirmed.