Verner v. Verner

1. The motion to dismiss the writ of error is without merit. The plaintiff in error complains of the refusal to dismiss the case. Had the court ruled as the movant claimed, such ruling would have been "a final disposition of the cause."

2. Where a husband filed at the situs of the marriage domicile a suit for divorce against his non-resident wife, and service by publication was perfected; and where, in connection with the divorce action, the husband voluntarily asked the court to pass upon his liability to pay temporary alimony, the court did not have jurisdiction to compel the wife to set up any claim for temporary alimony.

No. 14437. MARCH 11, 1943. On July 13, 1942, Harry Verner, a resident of Fulton County, filed a suit for divorce in Fulton superior court against Mrs. Vicki Poller Verner, a non-resident of Georgia, residing at 5700 Suwanee Avenue, Tampa, Florida, based upon service by publication. On October 21, 1942, the husband filed a further petition alleging that he was the plaintiff in the pending action for divorce, and had been inducted into the United States Army, then located in Leesville, Louisiana; that by reason of his induction he was subject to foreign duty, and might not be available for a hearing in the case. He prayed, that his liability for temporary alimony be adjudicated; that an order be entered fixing a date for a hearing; and that the defendant be notified, by registered mail, to set up any claim that she may have.

The defendant, without submitting to the jurisdiction of the court, made her special appearance for the only purpose of moving to dismiss the petition and order, upon the ground that the court did not have jurisdiction to compel her, a non-resident, to submit to the jurisdiction of the Fulton superior court for the purpose of having the question of temporary alimony adjudicated.

The court entered an order stating, in part: "It appearing that the defendant has been served with a copy of said petition and the order of this court thereon, by registered mail, and in response has filed through her attorney a special appearance and moved to strike said petition for want of jurisdiction in this court, . . it is . . ordered that the defendant's motion and special appearance be . . overruled, and the said defendant is required to assert her claim, if any," for temporary alimony. The attorney for the defendant accepted service of this order, "without submitting to the jurisdiction of the court." The defendant excepted to the order and assigned error on the judgment as contrary to law. 1. The defendant in error moved to dismiss the writ of error, on the ground the case was pending in the trial court, and the judgment complained of, if it had been rendered as claimed by the plaintiff in error, would not have been a final disposition of the cause, or final as to any material party thereto.

No cause shall be carried to the Supreme Court upon any bill *Page 594 of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto. Code, § 6-701.

In determining whether the exception in the instant case was to a final judgment, a material question is whether the petition upon which the judgment was rendered was an amendment to the divorce suit. In this connection see Ivey v. Forsyth,164 Ga. 705 (139 S.E. 354). The petition commenced:

"Harry Verner v. Mrs. Vicki Poller Verner. Number 139021. Fulton Superior Court.

"Georgia, Fulton County. To the Superior Court of said county:

"Harry Verner, petitioner, respectfully shows: 1. That he is the plaintiff in the above-stated action for divorce, now pending in this honorable court; and petitioner has been inducted into, and is now serving in, the United States Army," etc. Then petitioner set forth his reasons for asking the court to adjudicate his liability to pay temporary alimony to the defendant. No other reference to the divorce suit was made, and none of the relief sought in the present petition was asked in the divorce suit. The record shows that the trial court and each of the parties treated the petition as a separate action rather than as an amendment to the pending suit. In the circumstances the petition in the instant case should not be construed as an amendment to the divorce action.

Where the defendant filed a motion to dismiss an action because the court did not have jurisdiction to require her, a non-resident, to submit to the jurisdiction of the court for the purpose of having the question of temporary alimony adjudicated, a judgment overruling the motion is a final determination of the case as to her. Newton v. Roberts, 163 Ga. 135 (135 S.E. 505), and cit. Accordingly the motion to dismiss the writ of error is without merit.

2. Where a suit for divorce was filed by a husband against his non-resident wife at the situs of the marriage domicile, and where service by publication was perfected, the question for decision is whether such court has jurisdiction, at the insistence of the husband, to adjudicate his liability, if any, to pay the wife temporary alimony. It is declared in the Code, § 30-202: "Whenever an *Page 595 action for divorce, at the instance of either party, or a suit by the wife for permanent alimony, shall be pending, the wife may, at any regular term of the court in which the same shall be pending, apply to the presiding judge, by petition, for an order granting to her temporary alimony pending the cause; and, after hearing both parties and evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the husband and the facts of the case may justify." Under a proper construction of this section, the words "the wife may . . apply . . for an order granting to her temporary alimony" do not contemplate that a husband can institute a proceeding for the purpose of having his liability to pay temporary alimony adjudicated. It follows that the court erred in overruling the defendant's motion to dismiss the petition because the court did not have jurisdiction to require her to submit to the jurisdiction of the court for the purpose of having the question of temporary alimony adjudicated.

Judgment reversed. All the Justices concur.