160 Ga. 586 | Ga. | 1925
Lead Opinion
Mrs. Nodie Durham filed her petition against her husband, for permanent alimony, alleging that on account of his cruel treatment she was forced to separate herself from him and to further decline to live with him as his wife; and that they were living in a bona fide state of separation. She prayed for temporary and permanent alimony and attorney’s fees. The defendant filed his answer and denied all the allegations of cruelty charged against him. The jury, to which the case was submitted on September 16, 1924, returned a verdict for the plaintiff for
This is the second time the present case has been before this court. Durham v. Durham, 156 Ga. 454 (119 S. E. 702). The case was sent back for another hearing, 'because the court erred in failing.to give, in the course of its instructions, a definition of cruelty or cruel treatment as those terms are defined in the law. When the case was returned for trial the jury returned a verdict for the plaintiff against the defendant for the sum of $500 as permanent alimony. On the following day application was made to the court by counsel representing the plaintiff, for' attorney’s fees, which was allowed by the court, and the same was entered in the decree along with the amount awarded by the jury as-permanent alimony. One of the questions to be determined is whether the judgment of the court allowing the attorney’s fees after the verdict of the jury, but which was made a part of the same decree allowing permanent alimony, was too late, as insisted
What was said in the Wise case and the Luke case, supra, to the effect that the rule which requires that the order of the judge allowing attorney’s fees should precede the final verdict, whether the application for attorney’s fees is made in a suit for permanent alimony alone or in connection with a suit for divorce, was not necessary to a decision in those cases, so far as it applied to a case where the suit was for permanent alimony alone, for the reason that in neither of those cases was the suit for permanent alimony alone, but they were suits for divorce and verdicts had been rendered in those cases granting a divorce; and therefore, under the ruling in those cases the plaintiff and defendant were no longer man and wife'; the litigation had been ended, and of course in such cases the application for attorney’s fees ought to have preceded the end of the litigation. But in the instant case there was no suit for a divorce, and a verdict for permanent alimony in favor of the plaintiff against the defendant had been rendered, and before the decree was entered for the permanent alimony the plaintiff made her motion for attorney’s fees, which was allowed and included in
We are also of the opinion that the court did -not err in refusing to continue the hearing of the application for attorney’s fees, under the facts of the case. It is insisted that the defendant'was entitled to three days’ notice of the application for attorney’s fees; but it will be observed, as already pointed out, that the case had been twice tried; in the first case attorney’s fees had been allowed, but a new trial had been granted, and when the case went back for a second hearing the defendant was bound to know that the plaintiff was insisting upon an allowance for attorney’s fees and that that hearing would be before the judge and not before the jury. The motion for continuance was not based upon the ground that the defendant was providentially hindered from being present, and that his attorney, who made the motion, could not safely go to trial without his client, as provided by § 5717 of the Civil Code of 1910. It was the duty of the defendant to be present in court until the hearing on all branches of the case was finally terminated, and the showing made for a continuance did not come up to the rule in such eases; and therefore the trial judge did not err in refusing to continue the hearing on the question of an allowance of attorney’s fees.
Judgment affirmed.
Concurrence Opinion
concurring specially. I am as much of the opinion that the ruling of this court in Wise v. Wise, 157 Ga. 814 (3) (supra), is sound law as I was at the time I agreed to the decision. It is also, I think, perfectly plain that there is no conflict between the principle announced in Wise v. Wise, and the ruling announced in Luke v. Luke, 159 Ga. 551 (supra), in which the writer delivered the unanimous opinion of the court. However, I see a marked distinction between the issues presented in
Dissenting Opinion
dissenting. It seems to me that the ruling in Wise v. Wise, 157 Ga. 814 (3) (supra), is in conflict with the rule laid down in the second headnote in this case. The decision in Wise v. Wise was by a full bench, and is controlling. There does not seem to me to be any conflict between the ruling in Wise v. Wise and the principle announced in the first headnote in Luke v. Luke, 159 Ga. 551 (supra). In the latter case a supplemental petition for additional attorney’s fees was heard pendente lite, in pursuance of a previous order of the court expressly reserving the right to grant additional attorney’s fees; and hfter hearing evidence upon such supplemental petition the judge, with consent of counsel, reserved his judgment until a later date. Besides, the judgment allowing additional attorney’s fees was rendered upon the same day as the decree based upon the verdict awarding permanent alimony. So there is no conflict between the ruling in Wise v. Wise and that in Luke v. Luke. As the ruling in Wise v. Wise seems to me to be in direct conflict with the above ruling in this case, I feel constrained to dissent. I am authorized by Justice Atkinson to say that he concurs in this dissent.