Stalvey v. Stalvey

132 Ga. 307 | Ga. | 1909

Lumpkin, J.

(After stating the foregoing facts.)

Tinder the decisions in Yeomans v. Yeomans, 77 Ga. 174 (3 S. E. 354), Stallings v. Stallings, 127 Ga. 467 (56 S. E. 469), and King v. King, 128 Ga. 54 (57 S. E. 227), the judgment of the judge of the superior court, granting temporary alimony and directing a sum which had been deposited in bank by the husband to-be paid over by the bank to the wife and her attorney, must be reversed. The petition filed by the wife contained no prayer for permanent alimony, nor did it appear that there was any separate suit for permanent alimony or divorce pending. The petition contained only prayers for temporary restraint against changing the. status of the money in bank, that the entire amount be ..awarded to the wife as temporary alimony, and for process. An application for temporary alimony is only for an allowance ad interim, including counsel fees, if proper. It is interlocutory in its character,, not final. It must have as a basis some proper action which will result in a final judgment and terminate the interim. A judge of the superior court can not, on a mere application for temporary alimony, without more, and with no foundation on which to base-it, either by way of a suit for divorce or a suit for permanent alimony, grant the alimony prayed, and order funds of the husband in bank to be paid over by the bank to the wife or her attorney.

It was contended on behalf of the defendant in error that the point was not sufficiently raised before the presiding judge, or in this court, to authorize a reversal. In this view we can not concur. The husband filed a demurrer, one ground of which was because the plaintiff’s petition failed to set forth any cause of action against this defendant, and another was because the plaintiff in her petition did not pray for any relief against the defendant, or for the recovery of any judgment against him. The demurrer appears to have been before the presiding judge as a ground of objection to the gyant of the temporary alimony. In the bill of exceptions one assignment of error was because the court erred in awarding temporary alimony to the petitioner, there being no prayer in her petition or any in the amendment thereto for permanent alimony, and no prayer on which an award of temporary alimony could properly be based. Error in the judgment awarding alimony was also assigned on other grounds. The point of lack of a sufficient basis was more distinctly made than in Yeomans v. Yeomans, supra. In that case Chief Justice Bleckley said in the opinion (p. 126): “There is no intimation of this objection in the husband’s answer, and we doubt whether it was distinctly presented to the judge below, although it is substantially developed in the bill of exceptions. But as jurisdiction over the subject-matter is essential to the validity of an order made at chambers, and as to enforce the order may require the use of means that could not be employed without very grave consequences where jurisdiction is wanting, we feel constrained to sustain the exception.”

In response to the contention of counsel for the plaintiff in error that the petition did not have sufficient legal foundation, counsel for defendant in error in his brief replied that there was in the record a petition for permanent alimony, filed on July 11, 1908, which had been sent to this court by the clerk of the superior court, as a part of the record, though not specified to be sent up in the bill of exceptions. Counsel differed as to whether this could be considered by the Supreme Court. If it is not considered, then the application for temporary alimony appears to have been filed without the basis of a suit for divorce or permanent alimony. If it is considered, then the record shows on its face that the application for temporary alimony was first begun, and an effort was made to furnish a foundation for it by filing a separate suit for permanent- alimony later. This would not save the application foitemporary alimony.

As what has been said above necessitates a reversal, we need not consider at length other assignments of error, or deal with the sufficiency of the evidence to authorize the judgment. If a certified copy of the record of the trial and conviction of the defendant, in a court of South Carolina, of the crime of bigamy was not admitted in evidence as an adjudication of the fact that the defendant had been twice married, as the presiding judge certified, we do not clearly perceive how it was admissible “as illustrative of the defendant’s attitude to the plaintiff, of his separation from her and of his treatment of her, in determining the question of alimony and the amount of it.” If the presiding judge treated the proceeding as a general equitable petition, the proposed intervention by a person who claimed to have received a check from the defendant on the same day that the petition was filed and the restraining-order granted, and by a bank other than that of deposit which also claimed to have cashed a check drawn by him on that day, do not make sufficient allegations to show that the judge erred in rejecting them. The only judgment entered by the court was one awarding-alimony and counsel fees to the plaintiff, and directing the fund in bank to be paid over to her and her counsel. No formal order appears to have been passed upon the demurrers, though they were evidently considered as grounds of objection to the granting of temporary alimony. We will not, therefore, pass upon them formally as demurrers.

Judgment reversed

All the Justices concur.