154 Ga. 797 | Ga. | 1923
1. There is no merit in the contention that the judgment for temporary alimony and counsel fees was contrary to the law and evidence, because “ defendant, in her cross-action for divorce and alimony, alleged that she separated herself from the plaintiff.” The allegation in the defendant’s answer is, after reciting specific acts of cruelty, to wit: “This conduct on the part of plaintiff grew worse and worse after he became prosperous, and finally became such that she could not stand it any longer; consequently she separated from plaintiff on the 25th day of'May, 1921.” This allegation does not fall within the rule stated in Vinson v. Vinson, 94 Ga. 492 (19 S. E. 898), where the wife voluntarily and without cause abandoned the husband and refused to live with him. It falls within the ruling made in Nipper v. Nipper, 129 Ga. 450 (59 S. E. 226), and Sikes v. Sikes, 143 Ga. 314 (85 S. E. 193).
2. The assignments of error designated as (b), (e) and (d) are, in substance, that the judgment was not authorized by the evidence. The evidence was conflicting; and the rule is well settled that “ this court will not control the discretion of the trial court in allowing temporary alimony, unless it has been flagrantly abused.” Etheridge v. Etheridge, 149 Ca. 44 (99 S. E. 37). Under the evidence we cannot say that the sums awarded for temporary alimony and attorney’s fees constituted an abuse of discretion.
3. There is no merit in the assignment of error that “the judgment of the court is so confusing, contradictory, and unintelligible that it cannot be legally enforced.” The judgment plainly, and without confusion, awards a lump sum of $250 as temporary attorney’s fees, and reserves the right to allow additional attorney’s fees, to be determined according to all the facts and circumstances of the ease; and it as clearly and specifically awards the sum of $65 per month as temporary alimony from December 10, 1921, pending the case; and it recites that, five months having already elapsed from Dec. 10, 1921, it is ordered that the plaintiff pay to the defendant’s counsel of record the sum of $325 immediately. The last provision can have no other meaning than that five months, at the time of the hearing and rendition of the judgment,
4. Several assignments of error are based on the admission in evidence of a deposition, or several portions of a deposition, executed in Charleston, S. C. In each instance the court attached a note to the effect that “ at the time the evidence was introduced the objections made by counsel when the depositions were taken were not read to the court.” The court stated, that in “ considering the case, which he took under advisement on that day, he would read the depositions and such testimony as he considered legal that he would consider in making up his judgment, and such as he considered illegal that he would not consider in making up his judgment. The court at that time did not make any ruling on the objections made to the depositions taken in Charleston, South Carolina, and the objections were not read to the court orally, and no ruling invoked and no other objections were made at that time.” Plaintiff in error insists that it was the duty of the court to pass upon each question and on each answer of the witness, given in the deposition, and upon each objection urged to the testimony and'the documents referred to.” Held, that these assignments of error fail to show cause for a reversal of the judgment granting temporary alimony. It will be assumed, from what is said in the judge’s note, that counsel waived objection to the procedure outlined by the court. Moreover, on a hearing of this character, especially where the evidence, exclusive of said deposition, was sufficient to authorize the judgment, under the discretion rule stated above, the judgment will not be reversed.
Judgment affirmed.
