175 Ga. 47 | Ga. | 1932
In January, 1931, Mrs. Sellers filed her petition against E. E. Sellers Jr., for divorce and temporary and permanent alimony, on substantially the same state of facts as is set forth in the petition in the present case. Pending this petition, the parties entered into a contract on January 27, 1931, providing for settlement of the claim for temporary and permanent alimony. At the May term, 1931, of the superior court the petition was dismissed
The court did not err in overruling the ground of demurrer based upon the fact that at the time of the granting of the order nisi there was no suit pending in the court either for divorce or for permanent alimony. The petition was sanctioned and the order
In Hogan v. Hogan, 148 Ga. 151 (95 S. E. 272), it was held that the process in that case was defective but not void, and was therefore amendable; that the appearance by defendant at the hearing had at chambers was in obedience to the rule nisi issued by the judge, and not by virtue of the process. That ruling was based upon facts substantially as follows, as stated in the first headnote in the case: “A petition for divorce, alimony, and counsel fees was addressed to the superior court of Irwin County. It was presented to the judge thereof, who, on February 7, 1918, issued a rule nisi requiring the defendant to show cause on February 23, 1918, at a designated place, why temporary alimony and counsel fees should not be allowed; and also ordered the petition filed and the defendant served. The petition was filed on February 9, 1918, and the clerk of the court attached a defective process, the same not being addressed to the sheriff of the said county and his lawful deputies, and erroneously requiring the defendant to appear ‘at the next term of Irwin superior court to be held on the first Monday in April/ whereas the next regular term of that court was required by law to meet on the third Monday in April. The defendant appeared specially, at the chambers of the judge at the time appointed for the hearing in regard to temporary alimony and counsel fees, and moved to dismiss the proceedings, contending that the process was null and void because not directed to the sheriff or lawful deputy or other officer authorized by law to make service thereof, and because the process required his appearance on the first Monday in April instead of the third Monday in ApriJ. The plaintiff then and there offered an amendment correcting these defects in the process, directing the same to the sheriff of Irwin County and his lawful deputies, and changing the requirement as to attendance to the third Monday in April as provided by law.” The court heard evidence, and then allowed temporary alimony and counsel fees; to which order the plaintiff in error in that case excepted. And then follows the ruling which we have set forth above. See also Adams v. Adams, 150 Ga. 346 (103 S. E. 812). In the argument of counsel for the plaintiff in error in this case is raised the contention that the petition must be filed so as to make a pending suit, and the suit must be pending when the application for alimony is-made, citing
Nor did the contention that the wife was barred or estopped from seeking temporary alimony by a contract which had been entered into between herself and her husband for an allowance for her support during a certain period, under the evidence in this case, prevent the court from allowing a reasonable sum for temporary alimony ; because there was an issue of fact as to whether or not the husband had not, with the exception of a small payment under the contract, failed to carry out his agreement according to the terms of the written contract. We pretermit any discussion as to whether or not the wife, being a minor, will be bound by such a contract; but whether she was a minor or an adult, the existence of the contract into which her husband had entered with her did not prevent her seeking alimony, where the husband failed to keep the contract, leaving the wife without a support, if he was able to pay alimony; and that was a question for the court to pass upon under the .evidence in this case. See Apperson v. Apperson, 169 Ga. 593 (150 S. E. 827), where it was ruled: “Where prior to or pending a libel
Under the evidence the court was authorized to allow the sum of $65 as attorney’s fees, and the fact that this allowance of fees was to the attorney is no reason for setting it aside. This is part of the temporary alimony, the wife being entitled to counsel fees in order that she may defend or prosecute her rights. The court might have appropriately allowed this amount to the wife as a part of the alimony, but the fact that the judge makes it payable to the counsel for the wife as attorney’s fees does not render it void. Walden v. Walden, 171 Ga. 444 (155 S. E. 919).
The ruling stated in the fourth headnote requires no elaboration.
Judgment affirmed.