97 Ga. 795 | Ga. | 1896
In 1890, Mrs. Mitchell brought an action of divorce against her husband, and, during its pendency, made an application for temporary alimony, which was granted. It does not appear upon what ground, or grounds, the divorce suit was predicated. It does appear that a verdict therein was rendered in favor of the husband; but so far as the record before us discloses, no judgment or decree was ever
This petition for temporary alimony made no. reference whatever to any libel for a divorce, pending or otherwise. It was predicated upon so much of section 1737 of the code as authorizes an application for temporary alimony whenever a suit by the wife for permanent alimony is pending; and the petition distinctly alleges the pendency of her suit for permanent alimony, to which reference has been made above.
The answer of the respondent embraced two defenses: First, that of res judicata, based upon the verdict which had been rendered in his favor in the divorce proceeding; and, second, a denial of the petitioner’s right to alimony upon the merits of her claim.
It is clear that this verdict could not, in any possible view, amount to more than an adjudication that Mrs. Mitchell was not entitled to a divorce from her husband upon the ground, or grounds, alleged in her libel (whatever the same may have been), the nature of which is not disclosed. Treated as a judgment, it could hardly be held an estoppel to her present proceeding. But in our opinion, this verdict, standing alone, really adjudicated nothing. “It is only a final judgment upon the merits which prevents further contest upon the same issue and becomes evidence in another action between the same parties or their privies.” Webb v. Buckelew, 82 N. Y. 555, 560, cited in 1 Van
Nothing here said conflicts with the decision in Burns v. Lewis, 86 Ga. 591, holding that a final verdict in favor of a total divorce was sufficient of itself to dissolve the marriage, though no judgment declaring the marriage, dissolved was ever actually entered up. That decision was expressly based upon the provision in our present constitution, devolving upon the jury rendering the final verdict in a divorce suit the function of regulating the rights and disabilities of the parties, subject only to a power of revision by the court. A final verdict in favor of a total divorce admits of no construction other than that the jury intended the dissolution of the marriage, and the revisory power of the court would not extend to this element of the verdict. The above mentioned provision of our constitution has, however, no application whatever to a verdict denying a divorce; and therefore, such a verdict clearly falls within the general rule above stated, and must be followed by a judgment in order to become conclusive.
After carefully examining the evidence, we are unable to perceive, so far as the merits'of the case are concerned,
Judgment affirmed.