15 S.E.2d 481 | Ga. | 1941
Under cited rulings of law, refusal to adjudge a former husband in contempt of court by failing to pay alimony under void decree was not error.
On January 9, 1931, the judge denied a petition by the former husband to reduce the amount of alimony as fixed by the order of August 27, 1926, without prejudice to his right to file thereafter another application to change the first order or the order last made. In August, 1932, the former wife filed a petition to adjudge the former husband in contempt, unless he paid $100, representing alimony payments due from June, 1932, under orders of the court. *428 The husband admitted the averments that there were such orders to make payments, but he alleged that he was financially unable to meet such requirements, and he prayed that the amounts be reduced to such a sum as he could pay and "the court deems meet and proper." On September 2 and December 1, 1932, the court denied the prayers of the wife that the husband be adjudged in contempt; and on his application, in view of a salary reduction, reduced the two monthly payments to $17 each, reserving the right to modify these orders. On February 2, 1935, the husband filed another application to further reduce these amounts, on account of a salary reduction, and on other grounds; the wife sought to have him adjudged in contempt; and on March 13, 1936, the court entered an order so adjudging him unless he paid the plaintiff $2 a week, besides the $34 a month, until he paid the $80 due on "back alimony."
On December 16, 1940, the former husband filed the instant petition to restrain the wife from proceeding under a fi. fa. for $341.16 for alleged past-due alimony, and to obtain other relief, on the ground that the original alimony judgment, based on the agreement of the parties, was void because it was entered before the appearance term. The former wife filed an answer and a cross-petition to adjudge the former husband guilty of contempt for failure to pay accrued alimony; setting up that the applications of the husband and the orders of the court since the original judgment, none of which were excepted to, constituted binding adjudications and operated as an estoppel against any right to question the validity of such judgment and orders. By demurrer, motion to dismiss, and answer, the husband attacked the cross-petition and attacked the former judgment and orders as void on the ground stated. In February, 1941, the court entered an order that the prayers of the former wife to adjudge the former husband in contempt be denied, "because the court is of the opinion that there is no valid order or judgment in said case requiring [him] to pay permanent alimony, under which the court has jurisdiction to adjudge him in contempt;" and that "the court is of the opinion that [he] is able to pay the sum stated due by him in the rule for contempt, but declines to adjudge him in contempt, for the reasons above stated."
1. The superior court is "without jurisdiction to render a judgment for permanent alimony . . before the appearance term; . . such jurisdiction [can] not be conferred by consent of the parties;" and such a judgment, "being void for lack of jurisdiction, [can] not be the basis of contempt proceedings against the defendant for failure to pay permanent alimony." Seigler v. Seigler,
2. Jurisdiction of the subject-matter of a suit can not be conferred by agreement or consent, or consent, or be waived or "based on an estoppel of a party to deny that it exists."Parker v. Travelers Insurance Co.,
3. Under the preceding rulings, the court did not err in refusing to adjudge the former husband in contempt for failing to pay permanent alimony under the void decree.
Judgment affirmed. All the Justices concur.