26 S.E.2d 922 | Ga. | 1943
1. Where, in a petition in equity to set aside a divorce as null and void, it was alleged that the defendant had obtained from petitioner a divorce without having served her with or securing her acknowledgment of process of the divorce suit, and that petitioner and defendant had continued to live together until November 1, 1942, and that the divorce was granted in October or November, the petition was sufficient to indicate and specify the particular transaction upon which the cause was declared, and therefore contained enough to amend by. The amendment allowed was an amplification of the allegations of the petition with respect to the alleged fraudulent conduct of the defendant in procuring the divorce, and as pointing out the time of the granting of the divorce, and was not subject to the objection that it set up a new and distinct cause of action.
2. The allegations of the petition, to the effect that the defendant had obtained against the petitioner a divorce on November 2, 1942, although they had lived together as husband and wife until November 1, 1942, that petitioner had no knowledge of the pendency of the divorce action against her, she not having been served with process of the suit, nor had she acknowledged service thereof, and that the defendant had concealed from her and kept her in ignorance of the pending suit, were sufficient as grounds of fraud for setting aside in equity the divorce decree.
3. Where the allegations of an equitable petition are sufficient to show a cause of action for some of the relief prayed for, it will not be dismissed upon grounds of demurrer which are directed at the petition as a whole.
On January 9, 1943, the defendant filed a general demurrer to the petition, on the grounds (1) that no cause of action was set forth; (2) that no legal or equitable ground was alleged for setting aside the verdicts and judgment complained of; and (3) that *519
the petition is one for collection of alimony by virtue of a marriage that has been dissolved by a divorce between the parties. Objections to the allowance of the amendment were, that the petition failed to set out a cause of action, in form or substance, sufficient to admit an amendment, and that it set out a new and distinct cause of action, and was not in aid of any matter contained in the petition. A further amendment, praying that the divorce verdicts be set aside and declared void, was allowed. The court overruled the objections to the amendment and the demurrer, and the defendant excepted.
1. The present suit is a direct and independent proceeding in equity to set aside the first and second verdicts and the decree of divorce granted to the defendant and against the petitioner, as null and void because of the fraud of the defendant in obtaining the divorce. The first question to be considered is the allowance of the amendment over the objection that the petition failed to set out a cause of action sufficient in form and substance to admit an amendment. A declaration, whether at law or in equity, may be amended at any stage of the proceeding in matter of form or of substance, provided there is in it enough to amend by. Code, § 81-1301. The general rule as to what constitutes enough to amend by was so clearly announced in Ellison v. Georgia Railroad Co.,
The amendment allowed was germane, and did not set out a new and distinct cause of action. The petition sought to have the alleged divorce decree declared null and void because of fraud. The amendment amplified the allegations of the petition by setting out where and when the divorce was granted. It was explanatory of the alleged fraud practiced by the defendant in keeping the plaintiff in ignorance of the pendency of the divorce action. It has recently been said by this court, in Owens v.Owens,
2. Since the demurrer to the petition was filed after the filing and allowance of the amendment, and in view of the statement in the bill of exceptions that "the court entered upon said objection *521
and demurrers an order and judgment . . overruling defendant's general demurrer to plaintiff's petition and amendments," the demurrer will be treated as having been directed to the petition as amended. Equity will set aside by decree a judgment obtained by the fraud of the adverse party, if the petitioner is without fault or negligence. Code, §§ 37-219, 110-710. The fraud complained of in the present case was the procuring by the defendant of a divorce without serving the petitioner with process or obtaining an acknowledgment thereof, and the continued cohabitation of the parties until the day before the actual granting of the divorce, and the act of the defendant during such cohabitation in keeping his wife in ignorance of the pendency of the divorce action. This alleged conduct on the part of the defendant in concealing from his wife the fact that he had instituted a libel for divorce against her was a rank fraud. Two concurrent verdicts of two juries, at different terms of court, are necessary to the granting of a total divorce. Code, § 30-101. If the defendant obtained his final verdict and decree of divorce on November 2, 1942, that being the day next after the day he took his wife to Rome and left her with her parents, he perforce was living with his wife at Columbus when the first verdict was granted, since it necessarily was rendered at some term previously to the term at which the final verdict and decree were granted. The facts alleged were sufficient as grounds of fraud for setting aside in equity the verdicts and decree of divorce. See Mills v. Millis,
3. In another ground of demurrer, not argued in the brief of the plaintiff in error, it is insisted that the petition should be dismissed as being a suit for recovery of temporary and permanent alimony by virtue of a marriage that had been dissolved by a divorce. The demurrer is aimed at the petition as a whole, without specially attacking it in any particular. Having held that the allegations of fraud in the procurement of the divorce stated a cause of action for setting aside in equity the decree of divorce, the action will not be dismissed upon other grounds of general demurrer, even if otherwise good, which go to the petition as a whole. Carolina Construction Co. v. Branch,
There was no error in overruling the demurrer.
Judgment affirmed. All the Justices concur.