9 S.E.2d 70 | Ga. | 1940
1. A party who has once filed a suit for divorce on the ground of cruel treatment, which suit resulted in a verdict and decree adverse to the libellant, is not barred from thereafter filing a second petition on the same ground, but based on different acts, all of which were committed since the date of the former trial.
2. Where the parties to a marriage contract have lived together as husband and wife, the fact that they now live in a state of separation does not make it impossible for either to commit an act which the law will classify as cruel treatment which may be the basis for a divorce.
The previous suit between these parties, based on acts of cruel treatment alleged to have occurred before June, 1935, was terminated by judgment dated March 2, 1938. The present suit was filed on October 17, 1939, on the ground of cruel treatment based on acts alleged to have occurred since the termination of the former suit. These later acts could not have been alleged in the former suit, and could not have been passed on by the court in that case. The contention that the plaintiff, having brought against the defendant one suit for divorce based on the ground of cruel treatment, which resulted adversely to him, can not maintain the present suit on the same ground, i. e., cruel treatment, although based on acts which occurred since the termination of the first action, appears never to have been passed on by the courts of this State. Similar questions, however, have been decided in other jurisdictions. Torlottingv. Torlotting,
2. The second question to be determined is this: Where two parties to a marriage contract have lived together as husband and wife, does the fact that they now live in a state of separation make it impossible for either party to commit any act or acts which the law will classify as cruel treatment which may be the basis for a divorce? This identical question has been passed on by various courts in other jurisdictions; and apparently the authorities from the other States are uniform to the effect that the fact that the parties happened to be living in a state of separation at the time the acts occurred did not operate as a bar to their being urged as the basis of an action for divorce. MacDonald v. MacDonald,
Judgment reversed. All the Justices concur. *233