164 Ga. 839 | Ga. | 1927
1. Where a suit for divorce is filed against a non-resident defendant, who is served by publication in the manner provided by law, if and when such defendant becomes resident within the jurisdiction ■ of the court in which the petition for divorce is pending he is personally served with a petition ancillary thereto, in which alimony and the writ of ne exeat are prayed, and wherein the divorce suit is referred to, and which ancillary petition contains an order signed by the judge of the superior court requiring the defendant to show cause on a named day why the prayer of the petition for alimony should not be granted, and where such defendant is at the time of such service arrested under an order ne exeat república issued on such ancillary petition, and gives bond conditioned to be forthcoming to answer the petitioner’s complaint or
2. Where a petition containing two counts, one seeking a divorce upon the ground of cruel treatment, and the other praying an anullment of the alleged marriage on the ground that the defendant was incapable of contracting marriage with the petitioner by reason of a prior undissolved marriage, is afterwards amended by the addition of an ancillary petition seeking alimony, which is awarded by the trial judge, and the cause proceeds, and the petitioner obtains a "divorce” by the verdict of two juries, wl^ich second verdict finds that both parties “shall be at liberty to marry again,” in a subsequent proceeding to enforce the judgment for alimony, where the above matters appear uncontradicted, and no further evidence is adduced, the judgment for alimony is presumptively legal, and it must be presumed that the plaintiff abandoned the second count of her petition and relied solely upon the first count; for in the absence of a showing to the contrary this court will not assume that the trial judge granted alimony to one who proved that she was not, and never had been, the lawful wife of the defendant sued. Wagnon v. Pease, 104 Ga. 419, 424 (30 S. E. 895). See Schulze v. Schulze, 149 Ga. 532 (101 S. E. 183). Under the circumstances set forth above it was not erroneous to overrule the oral motion of the defendant security to dismiss the “entire proceeding,” based upon the sole ground that the issuance of the writ of ne exeat was a nullity, in that the petition for divorce shows, in count 2, that the complainant never was the lawful wife of the defendant.
3. The court did not err in overruling the demurrer.
(а) The motion or petition showed a right in the plaintiff to the relief prayed, and the security on the ne exeat bond which had been breached was a proper party to the proceeding.
(б) Upon the breach of a ne exeat bond given in an action for alimony, the court in which such alimony proceeding is pending may force payment of the bond.from the surety in a summary proceeding on an order to show cause why judgment should not be entered. Freeman v. Freeman, 143 Ga. 788 (85 S. E. 1038). Schreiber v. Schreiber, 85 N. J. Eq. 303 (96 Atl. 85).
(o) The petition alleged a breach of the ne exeat bond on which Jackson was security, and as against a demurrer this was sufficient to show liability on the part of such security.
(d) After the termination of a suit for divorce and alimony, in which the petitioner is granted alimony, where proceedings are had to enter judgment on a ne exeat bond executed by the defendant in such suit as principal and another as security to secure the release of the principal from jail, the suit for alimony and divorce is not “functus officio” as relates to the proceeding to enter judgment on the bond; and where the petition or motion filed by the plaintiff states the above facts and alleges a breach of the bond, the security is shown to have some “connection” with the suit.
4. The plea in abatement was without merit. To require, in a proceeding
5. Under a well-settled rule of jurisprudence, constitutional questions not raised in the lower court, and presented for the first time in this court, will not be considered. Loftin v. Southern Security Co., 162 Ga. 730 (3) (134 S. E. 760), and cit.
6. Under the facts of this ease the trial judge did not err in entering judgment against the security on the ne exeat bond.
Divorce, 19 O. J. p. 212, n. 38; p. 285, n. 61; p. 286, n. 69, SI; p. 287, n. 95; p. 321, n. 41, 42; p. 330, n. 80.