27 S.E.2d 31 | Ga. | 1943
1. A suit for divorce based solely on the ground of desertion may be amended before the first verdict, by alleging adultery of the defendant, anterior to the suit. Zachary v. Zachary,
2. Where an amendment alleging adultery, and seeking cancellation of an allotment by the war department from the plaintiff's pay as a soldier and recovery of amounts received by the defendant, was allowed subject to demurrer, and was later disallowed or stricken upon the sustaining of an oral demurrer insisting (1) that it undertook to set out a new and distinct cause of action, (2) that the adulterous acts were committed after the separation, (3) that the allegation as to adultery was insufficient, because there was no averment as to time or place, or as to why such specification could not have been made, and (4) that the balance of the amendment, referring to the allotment and amounts paid to the defendant, undertook to set up irrelevant and immaterial matters that could only serve to prejudice defendant's defense, if admitted: Held, that the sustaining of ground 4 of the demurrer, though not erroneous, served only to eliminate the parts of the amendment attacked in this ground, and did not have the effect of striking the amendment as a whole. White v. Little,
(a) The amendment was not subject to either of the first two grounds of demurrer, which were general in nature, and it was error to sustain these grounds along with ground 3, a special ground, and thus to strike the amendment in its entirety, without allowing the plaintiff an opportunity to amend further, so as to cure the defects pointed out in the third or special ground. Sims v. Cordele Ice Co.,
(b) The plaintiff was not bound to except directly to the erroneous order *523
disallowing or striking his amendment, but he could, by motion during the same term, apply to the trial court to correct its own error in such ruling. Van Dyke v. Van Dyke,
(c) Where, after the striking of the amendment, the case proceeded to trial and terminated in a first verdict for the defendant, the plaintiff could in the same motion seek also to have the verdict set aside for such antecedent error, and the court could properly sustain the motion as to both matters. Compare Code, § 6-804; Ayer v. James,
(d) Nor, under analogy of the authorities last above cited, was a brief of the evidence necessary; the motion, though addressed to the trial court, being in the nature of a bill of exceptions, complaining only of an antecedent error of law in a ruling upon the pleadings. The case thus does not fall within the rule laid down in the following and similar cases, as to necessity of a brief of evidence. Firemen's Insurance Co. v. Oliver,
3. The plaintiff's amendment having been first allowed subject to demurrer and afterwards disallowed or stricken on demurrer, the case differs from one in which the amendment is not allowed at all when offered, but is disallowed on objections urged. Compare White v. Little,
4. It appears from the record and the bill of exceptions that no question was raised or considered by the trial court as to the filing of the plaintiff's amendment. See, in this connection, Miraglia v. Bryson,
5. Under the preceding rulings as applied to the record and the assignments of error, the judgment sustaining the plaintiff's motion to set aside both the order disallowing the amendment and the verdict for the defendant was not erroneous for any reason urged.
Judgment affirmed. All the Justicesconcur.
"1. During the marital life of petitioner and defendant, said defendant was guilty of repeated acts of adultery with a negro soldier by the name of Ned Johnson, and with various and sundry other men at divers times and places, all of which was without petitioner's knowledge or consent, and practiced the profession of a prostitute.
"2. Petitioner has never condoned said misconduct.
"3. Unknown to petitioner and without his consent, defendant filed application with the office of dependency, war department, for class A allotment and allowance, representing herself to be entitled to such benefits, and concealing from said authority the fact that she had by her adulteries forfeited her right to the same. Petitioner was not permitted to make a counter-showing thereto, and the ex parte application was granted as a matter of course. On learning that his active pay service was subjected to such deductions, petitioner protested and declined to sign the monthly payrolls, seeking thereby to bring about a discontinuance of said compulsory allowance, the sole result of which has been to deny to himself the right to collect monthly the pay that was rightfully his.
"4. In petitioner's behalf, his counsel applied to said office of dependency benefits for a discontinuance of said allowance to defendant, and on Feb. 5, 1943, the Adjutant-General wrote his counsel with reference to said allowance, identified as X0754753, `Monthly family allowance payable to class A dependents may not be discontinued as long as dependents remain eligible and soldier remains in an eligible grade,' which decision petitioner understands is not subject to review, but is final, so far as petitioner and defendant are concerned.
"5. Petitioner has made futile efforts through military channels, by letters directed to the office of dependency benefits, to bring about a termination of said compulsory allotment, and his refusal to sign the pay-roll serves only to deprive himself of earned pay while leaving unaffected the payments to defendant boasted by her in paragraph 13 of her plea and answer herein.
"6. Defendant in this case is wholly insolvent, and petitioner could not recover of her, after collection of said benefits, any portion of the same. *525
"7. Petitioner is still in active duty in the army of the United States, and expects to remain in service for the duration plus six months.
"Wherefore petitioner prays: a. His amendment be allowed by the court. b. The allotment and allowance application executed by defendant be canceled. c. Petitioner recover of defendant a judgment for the sums of money wrongfully collected by her under said allotment and allowance, to wit, $22 monthly deducted from his active service pay, from the commencement of said award. d. He have such other and further relief, equitable and legal, as the facts may justify."
The amendment was allowed, "subject to demurrer," and the defendant demurred on the following grounds: "1. That the amendment was not admissible, because it undertook to set up a new cause of action. 2. That the amendment undertook to set up acts committed after the date of the separation. 3. That the allegation of adultery was insufficient, because two essentials of an allegation of adultery were missing, to wit: the time and place of the adultery, and there was no allegation as to why these essentials could not have been alleged. 4. That the balance of the amendment undertook to set up irrelevant and immaterial matters that could only serve to prejudice defendant's cause, if admitted."
The court, after consideration of these objections, passed the following order: "Amendment above is, on defts demurrer, disallowed."
On evidence relating to desertion only, as alleged in the original petition, the jury returned a verdict against divorce, the same being the "first" verdict. During the same term at which the verdict was rendered and at which the plaintiff's amendment to his petition was disallowed, he filed in the same court a motion, alleging: "Said amendment was improvidently and improperly stricken and finally disallowed, and said verdict should be vacated for the purpose of permitting a trial on both charges, desertion and adultery." The movant prayed that "said order disallowing the amendment and said verdict be vacated and set aside, and that a rule nisi issue requiring defendant to show cause, if any she has, why such should not be done." The motion was not accompanied by a brief of the evidence. Service of the motion was acknowledged by the defendant's attorney; and after a hearing, the court *526 passed the following order: "The foregoing motion being presented during the term at which the verdict was rendered against plaintiff, it appearing that plaintiff's original amendment was first allowed and later disallowed on defendant's demurrer, and after hearing argument on both sides of the motion the court being satisfied that the disallowance of the amendment was erroneous and prejudicial to plaintiff, it is ordered that said verdict be and it is hereby vacated and set aside, as moved by plaintiff, and the case stand in order for trial on the petition as amended, the order disallowing said amendment being likewise vacated." The defendant brought the case to this court, assigning error as follows: "She [the plaintiff in error] here and now excepts to the ruling of the judge in passing the order vacating and setting aside his order disallowing the amendment and vacating and setting aside the verdict of the jury. The defendant says that the acts and doings of the judge in passing said order was error, and the judge should have permitted his order disallowing the amendment to stand; and that the verdict, being correct, should not have been set aside."
The bill of exceptions as certified recites that "said amendment is of record in the office of the clerk of Bibb superior court." The amendment was also specified as a part of the record, and was accordingly included by the clerk in the transcript. The record does not show any entry of filing upon the amendment, nor does it appear that the amendment was not filed after first being allowed by the judge.
