135 Ga. 828 | Ga. | 1911
1. The plaintiff in error filed his petition in Eulton superior court to set aside a verdict and a decree granting his wife a total divorce against him, making substantially the following allegations: His wife brought the suit for divorce on the ground of desertion, alleging that she and the defendant were residents of Eulton county. The petition was filed on May 29, 1906. On that date process was issued, requiring the defendant to appear at the July term, 1906. There appeared on the petition, signed by the defendant, the following entry: “ Service of the foregoing petition is acknowledged. Jurisdiction of the superior court of Eulton county is recognized. This the 13th day of November, 1906.”
•The petition in the suit for divorce, in which the verdicts and decree granting a total divorce were rendered, -alleged that the husband was a resident of Fulton coufity, in the superior court of which the suit was filed. The acknowledgment of service of the petition by the husband stated: “Jurisdiction of the superior court of Fulton county is recognized.” In order for the superior court of Fulton county to have had jurisdiction, it was necessary that the defendant be a resident of said county, if he -was a resident of the State; and the statement by the husband, in his acknowledgment of service on the petition, that the “jurisdiction of the superior court of Fulton county is recognized,” is susceptible of the meaning that he was a resident of Fulton county at the time the suit for a divorce against him was filed. The Civil Code (1910), § 2959, provides: “No verdict-or judgment by default shall ever be taken in a suit for divorce, but the allegations in the petition must be established by evidence before the juries.” Under this statute, it was the duty of the court not to permit a verdict for divorce to be taken, unless the evidence made a prima facie case showing that the defendant in the divorce suit was a resident of Fulton county at the time the suit was filed, and it was the duty of the jury to refuse a divorce unless this fact was proved by a preponderance of the testimony. The acknowledgment of service by the defendant, wherein he stated that he recognized the jurisdiction of -the court in which the suit for divorce against him was pending, was on the petition and a part of the record in the case; and this was in effect a statement that- he was such a resident at the time the suit was filed, which fact was necessary in order to give that court jurisdiction of the divorce suit. This prevents the defendant from afterwards asking a court of equity to set aside a verdict and decree in the case on the ground that the court rendering them had no jurisdiction because the defendant was not a resident of Fulton county when the suit for divorce was filed.
2. The process was issued returnable to the July term; and after several terms of the court had passed, and without the issuance of any new process, the defendant acknowledged on the petition service thereof and recognized the jurisdiction of the court. The process requiring the defendant to appear at the July term, when there was a failure to serve it in proper time before that term, cojild not operate as a valid process to require the defendant to appear at a subsequent term; but the defendant had the right to waive the issuance of another process, and the language of the entry on the petition, which entry was signed by the defendant, was such as, properly construed, meant that the court could proceed with the case without the issuance of a new process. The de- . féndant had the right to waive process, and we think the effect of the language in the entry signed by the defendant was that the ease might be tried without any process being issued other than the one which was issued. After verdict the defendant could not complain that a new process was not issued.
Judgment affirmed.