154 Ga. 800 | Ga. | 1923
1. In response to the petition of the husband for a divorce, the wife filed an answer and a petition for alimony, temporary and permanent, and for counsel fees, in one cross-action. “ A petition for alimony pending a divorce suit or a suit for permanent alimony is in the nature of an ancillary proceeding, and does not require the issuance and service of a new process returnable to another term of court. Upon it the presiding judge issues an order nisi which is served and under which the hearing is had.” Nipper v. Nipper, 129 Ga. 450 (3) (59 S. E. 226); Williams v. Williams, 137 Ga. 791 (74 S. E. 242); Hogan v. Hogan, 148 Ga. 151 (2) (95 S. E. 972); Legg v. Legg, 150 Ga. 133 (102 S. E. 829); Glover v. Glover, 151 Ga. 574 (2) (107 S. E. 861). This principle will also apply where, in a ease like this, the cross-action for a divorce embodies -within it a petition for alimony and also for attorney’s fees.
2. “ In suits for divorce the judge presiding may, either in term or vacation, grant alimony or decree a sum sufficient for the support of the family of the husband dependent upon him and who have a legal claim upon his support, as well as for the support of his wife.” Civil Code (1910), § 2980; Ray v. Ray, 109 Ga. 465 (34 S. E. 562); Williams v. Williams, supra. The code section just quoted is taken from the act approved October 28, 1870 (Georgia Laws 1870, p. 413). This act modified or relaxed the rule requiring applications for alimony where an action for divorce was pending, to be made “ at any regular term of the court,” as then required by the Code of 1863, § 1689, now' appearing in the Code of 1910 as § 2976. Construed together, the two sections authorize applications for temporary alimony, when a suit for divorce is pending, to be made either in term or vacation. As held in the preceding headnote, such a petition does not require now process returnable to any other term of court. Moreover, as has been repeatedly held, temporary alimony is awarded for the purpose of enabling the w'ife to live, and to contest the issues between herself and her husband in proceedings for divorce and permanent alimony.
3. The remaining assignments of error raised the issue as to whether the judgment refusing to vacate the former judgment was error, because, as a matter of law, the evidence demanded a finding that the former judgment should be vacated; and this court cannot hold that the judgment complained of was contrary to law or equity, or that the amount named in the ne exeat bond was excessive.
Judgment affirmed.