159 Ga. 862 | Ga. | 1925
Alfred L. Cox filed a petition on Dec. 12th, 1922, praying that lie be granted a total divorce from Berma B. Cox. The petition alleges that on April 30th, 1922, the defendant, who resided in Polk county, came to Atlanta, bringing a warrant charging petitioner with seduction, under which he was arrested and placed in the police station of the City of Atlanta; that defend- and then and there charged petitioner with being the father of a child with which she was pregnant, and told petitioner that if he would marry her she would dismiss the warrant, and that if he did not marry her she would put him in the penitentiary and would bring about his discharge from the position which he held; that, be
We are of the opinion that the petition for divorce in this ease was properly dismissed upon mere oral motion. We bear in mind the rule which prescribes, as the test of the ability of a petition to withstand an oral motion to strike, or general demurrer, the requirement that the defendant admit every allegation of the petition to be true, with the consequent penalty that if by this admission
The allegations of the petition entirely failed to show either fraud or duress so as to avoid, the subsequent marriage. One can not be defrauded unless he is deceived to his injury. Duress will never be said to exist where two different courses of action are presented to the person who claims he was put in fear and he has free option to make a choice. According to the allegations of the petition, the defendant swore out a warrant charging petitioner with the offense of seduction, and had him placed in jail, and told him that he would be prosecuted and convicted unless he married her. The plaintiff states no facts, and none could be stated, to qualify the situation disclosed by the petition. At the time and under the circumstances stated by him, he was in no physical danger. The alternative presented him the right to have a trial before a jury of his peers; and if innocent, he should have been acquitted. No threat was made except to submit to petitioner the danger of conviction; and if he was conscious of his innocence, he should have been willing to stand trial. Mere threats can not constitute duress. Was there any fraud? The petition states that the defendant stated that he was the father of the child with which she was pregnant. If the plaintiff knew that this was true, he was certainly not defrauded. He did know that she was pregnant, whether t'he unborn child was his, or the fruit of illicit commerce upon the part of the defendant with some other man. He knew all the facts. He knew the uncertainties, if any existed, as to the paternity of the child. For ordinarily a man may doubt the chastity of a female who, though unmarried, is pregnant. He states that for reasons sufficient to himself—and for his own convenience—he consented to marry the defendant. It is very plain there was neither fraud nor duress in the legal acceptation of those terms.
Did the petition set forth cause for divorce on the ground of cruel treatment? The petition alleges that petitioner has never