Pitts v. Pitts, 144 Ga. 423

144 Ga. 423 | Ga. | 1915

Beck, J.

(After stating the foregoing facts.) We are of the opinion that the court erred in granting the order and judgment excepted to in this case. There is no allegation in the petition that there was pending a suit for divorce, or a suit for permanent alimony; and in the absence of a showing that there was a suit, either for divorce or permanent alimony, the application for temporary alimony could not be maintained. In the case of Stallings v. Stallings, 127 Ga. 464 (56 S. E. 469, 9 L. R. A. (N. S.) 593), it was said: “In order for a jpdge at chambers to have jurisdiction to hear an application for temporary alimony there must be pending a proceeding by bill or petition for permanent alimony, or for divorce;” the court citing the case of Yoemans v. Yoemans, 77 Ga. 124 (3 S. E. 354). See also Park’s Ann. Code, §§ 2976, 2986, and citations thereunder. The defendant in error insists •that the petition in this case should be treated as one brought to recover permanent alimony and temporary alimony also; and that it differs from the case of Yoemans v. Yoemans, supra, because in that case there was no prayer for process, while there is a prayer for process in the instant case. We do not think that the fact that there is a prayer for. process converts this petition into one which could be treated as a suit for permanent alimony. Except in this one particular (the fact that there is a prayer for process), the entire petition seems to be addressed to the judge, and to seek interlocutory relief. It is addressed to the judge by name, and prays that the judge will allow to petitioner for her support such sums as may seem reasonable and proper to the judge. It was the only application before the judge when he exercised jurisdiction at chambers in fixing the amount allowed in the order for temporary alimony. No amendment was offered to show that a suit for divorce or for permanent alimony was pending, or that this was a suit intended as one for permanent alimony. Construing the petition most strongly against the petitioner, this should be treated merely as an application for temporary alimony, and the judge should not have entertained it in the absence of some showing tha't there was a basis for such an application in the fact that there was a suit for permanent alimony or for divorce then pending. Judgment reversed.

All the Justices concur.