Jackson v. Jackson

164 Ga. 115 | Ga. | 1927

Lead Opinion

Gilbert, J.

Mary Jackson brought suit against G. J. Jackson Sr. (her husband), G. J. Jackson Jr., and Ernest Jackson, ' alleging that her husband had deserted her, and praying the recovery of alimony against him. Her suit disclosed that the husband was not a resident of the State of Georgia, but, at the time suit was filed, was a resident of Indianapolis, Indiana, and that service could not be had upon him. In support of her claim for alimony she alleged that at one time her husband had been -in possession of a certain tract of land in Fulton County, which was described, and that he owned a farm near Commerce, Georgia; that this property had been conveyed to the two sons of the husband, defendants to the suit; and that the conveyance to them was made without consideration and for the purpose of defeating her claim for alimony. The consideration named in the deed is *116“love and affection.” The plaintiff prayed for service upon her husband by publication, that the conveyance from him to his sons be set aside, that she be granted permanent alimony, and that a judgment in rem for'the amount of alimony decreed be rendered against the property. She also prayed for injunction and other relief. G. J. Jackson Jr. filed general and special demurrers to the petition. The plaintiff subsequently amended her suit, praying for the appointment of a receiver to hold the property described in the original petition, and for a rule requiring defendants to show cause why a temporary receiver should not be appointed. To the amendment and to the petition as amended the above-named demurrant renewed his demurrers. On the hearing the court overruled the demurrers, and the said demurrant excepted. Held, following the case of Forrester v. Forrester, 155 Ga. 722 (118 S. E. 373, 29 A. L. R. 1363), that the court did not err in overruling the demurrers to the plaintiff's petition -as amended. The request to review and overrule the Forrester case is denied. Judgment affirmed.

All the Justices concur, except



Dissenting Opinion

Beck, P. J., and Hill, J.,

dissenting. The ruling made in this case involves the holding that the deed from the defendant in the suit to his sons could be set aside without making the grantor in the deed a party, with personal service upon him of the suit.' Service by publication was not sufficient. Hood v. Hood, 130 Ga. 610 (61 S. E. 471). The decision in the Hood case is fortified by the citation of a large number of cases. See also the case of Stallings v. Stallings, 127 Ga. 464 (56 S. E. 469, 9 L. R. A. (N. S.) 593). The opinion in the case of Forrester v. Forrester, 155 Ga. 722 (supra), was rendered by a divided court, the judgment in that ease being affirmed by four Justices, with two dissenting. Consequently the Forrester case is not controlling, and sliould not be followed. In our opinion the doctrine there laid down is not sound.