Roberts v. Roberts, 39 S.E.2d 749

Roberts v. Roberts

39 S.E.2d 749 | Ga. | 1946

Where the wife in a divorce action also sought permanent and temporary alimony, and the court issued a rule nisi for the defendant husband to show cause on a specified date why he should not be required to pay temporary alimony and attorney's fees, and after a hearing on the date named the court entered an order awarding the wife temporary alimony and attorney's fees, the fact that at such hearing the pleadings and records were not in the possession of the presiding judge or on the bench or in the courtroom, but admittedly were in the files in the office of the clerk of the court, did not render the judgment subject to the objection that it was illegal, void, and contrary to law because of such absence of the pleadings and records.

No. 15595. OCTOBER 9, 1946. Mary Elizabeth Roberts filed in the Superior Court of Bibb County, Georgia, a petition against Vivian H. Roberts Jr. for divorce and permanent and temporary alimony. Pursuant to the issuance of a rule nisi, the application for temporary alimony and counsel fees came on for a hearing. After the presiding judge had sounded the calendar and called the particular case, each party announced ready and introduced evidence, upon the conclusion of *358 which an order was entered granting the petitioner temporary alimony in the sum of $20 per week and attorney's fees in the sum of $15. At the time the case was called in the superior courtroom on the third floor of the Bibb County courthouse, the pleadings and all records in the proceeding were not before the presiding judge and not in the courtroom or on the bench or in the possession of the judge at any time during the hearing, but were in the files of the office of the clerk of the court, which was located on the main or second floor of the courthouse. The defendant excepts to the judgment, contending that it was illegal, void, and contrary to law because of such absence of the pleadings. The plaintiff in error, in order to show the alleged invalidity of the judgment complained of, cites and relies upon authorities that pleadings may not be dispensed with even with the consent of the parties. Code (Ann. Supp.), § 24-3340; Central Bank ofGeorgia v. Johnson, 56 Ga. 225; Hicks v. Marshall,67 Ga. 713; Martin v. Nichols, 127 Ga. 705, 709 (56 S.E. 995). These rulings, however, relate to instances where there is a total absence of pleadings, not merely in the courtroom but in the proper depository of the court, the files in the office of the clerk of the court. In such cases it can not be ascertained from the verdict or judgment whether or not it conforms to issues made by pleadings, and, as was said in Central Bank of Georgia v. Johnson, supra, "The public interest requires that the records of the court should show what issues have been made and determined therein for the protection of the rights of the citizens of the State." Obviously the rulings in the cited cases have no application to the facts of the present case. Here it is admitted that all the pleadings and records were in the files in the office of the clerk of the court, though not before the presiding judge or in the courtroom. Those papers, as appears from the record here, would show upon examination that Mrs. Mary Elizabeth Roberts, in an action against Vivian H. Roberts Jr. for divorce, was also seeking permanent and temporary alimony. They would also show that a rule nisi had been issued for the defendant to show cause on June 28, 1946, why he "should not be required to pay temporary alimony and counsel fees to the plaintiff, *359 Mrs. Mary E. Roberts, pending the final hearing." It is settled law that a court will take judicial notice of its own records in the immediate case or proceedings before it. Frank v. State,142 Ga. 741, 761 (83 S.E. 645, L.R.A. 1915 D, 817); Branch v. Branch, 194 Ga. 575, 577 (22 S.E.2d 124); 20 Am. Jur. 104, § 86. Hence, when the application for alimony came on for a hearing on June 28, 1946, the date specified in the rule nisi, the court knew judicially the issues which were made by the pleadings and upon which evidence was introduced. It is not contended that there was any other litigation pending between the parties, and the order granting temporary alimony and attorney's fees states the case as "Mrs. Mary E. Roberts v. Vivian H. Roberts Jr.," number 10202, and recites that the hearing was had on June 28, 1946, all of which conforms to the original petition for divorce and alimony in the files of the office of the clerk of the court and the rule nisi issued in response to the petitioner's prayers. Since the pleadings and records in the office of the clerk, of which the court had judicial notice, and the judgment rendered show clearly the issues made and determined, the contention that the judgment is illegal, void, and contrary to law is without merit.

Judgment affirmed. All the Justices concur.