1. If a ceremonial marriage is void on account of the husband’s disability to contract marriage, and after the disability is removed the man and woman again agree and each accepts the other as a lawful spouse, and they cohabit with each other, holding themselves out to the world as husband and wife, they will be held to be lawfully married. Hamilton v. Bell, 161 Ga. 739 (3) (132 S. E. 83), and cit.
2. A petition for permanent alimony, based on the ground that the parties are living in a bona fide state of separation without any suit for divorce pending between them, and for temporary alimony and allowance for attorney’s fees, which alleges in general terms the marital relation and the ability of the husband to support and maintain the wife, may be amended by alleging that the marriage relation existed at the time the petition for alimony was filed, by reason of a common-law marriage between the parties, and by specifically describing the social and financial standing of the parties, showing the necessities of the wife and the ability of the husband to pay permanent alimony.
3. Where an amendment of the character just referred to alleges that the agreement upon which the common-law marriage was based occurred after the husband had repudiated a former ceremonial marriage between the parties and while a suit instituted by the husband was pending in the courts of Virginia to dissolve such ceremonial marriage, and the common-law marriage was entered into after the husband’s alleged disability had been removed, such amendment did not allege a different cause of action from that which was obtained in the original petition. Nor did the allegations relating to social and financial standing of the parties, and the claim for allowance of alimony in a lump sum, allege a different cause of action.
4. There is no provision of law requiring service upon a defendant of an appropriate amendment to an original petition. Miller v. Georgia Railroad Bank, 120 Ga. 17 (2) (47 S. E. 525). It was not essential to validity of the judgment rendered in this case that the defendant be served with the amendment to the petition.
5. On the day the petition for permanent alimony and temporary alimony and attorney’s fees was filed, and after service thereof had been acknowledged by the defendant, the defendant paid to the plaintiff $700, and both parties signed a written contract which provided as follows.: “This agreement, made and entered into this 16th day of November, 1922, by and between Mrs. Olelia Heflinger and Charles Heflinger, witnesseth that said Mrs. Olelia Heflinger has this day received from said Charles Heflinger the sum of seven hundred dollars ($700.00), five hundred dollars ($500.00) of which amount is in full settlement of any and all claims which the said Mrs. Olelia Heflinger has 'or may have against the said Charles Heflinger for and on account of temporary alimony (for which suit has this day been brought *868by her against him in the superior court of Fulton County, Georgia), for and during the period from the present time to the date of the rendition of final judgment or decree by the Court of Appeals of the State of Virginia, upon an appeal now pending in said court by said Mrs. Clelia Hefiinger from a judgment or decree in a suit brought by Charles Hefiinger against the said Mrs. Clelia Hefiinger for the annulment of an alleged marriage existing between said parties; and the remainder, two hundred dollars ($200.00) of said amount being in full settlement of attorney’s fees sued for by said Mrs. Clelia Hefiinger in said suit this day brought in Fulton superior court. This agreement is entirely without prejudice with respect to the rights of either party hereto in any respect whatsoever. In witness whereof the parties hereto have hereunto set their hands and affixed their seals the day and year first above written.” Meld:
No. 4935. February 19, 1926.(а) This contract purported to refer exclusively to temporary alimony up to a specified time, and to attorney’s fees in the suit for alimony, and had no reference to permanent alimony.
(б) Eeceipt of the money under this contract was no representation upon the part of the plaintiff that the suit for permanent alimony would be abandoned.
(c) The defendant has not alleged any conduct or representation upon the part of .the petitioner, from which it could be inferred that the plaintiff would not continue to sue for permanent alimony.
6. In a suit for permanent alimony it is within the power of the court to award an absolute estate in money in a lump sum. Wise v. Wise, 156 Ga. 459 (2) (119 S. E. 410).
7. The defendant did not file any demurrer or answer to the original or amended petition for alimony, or appear at the trial. A verdict was returned: “We, the jury, find for the plaintiff, and award to her permanent alimony in gross the sum of thirty-seven thousand and five hundred dollars. We find that the plaintiff do recover of the defendant said sum of thirty-seven thousand and five hundred dollars, which we award to the plaintiff as her own absolutely in fee simple. This Jan. 31, 1924.” A judgment was duly entered upon the verdict, and on May 1, 1924, the defendant filed his formal motion to vacate and set aside the verdict and judgment. Meld, that under application of the foregoing principles, the court had jurisdiction of the alimony suit as amended. The verdict and judgment were appropriate under the law in a proper case. The defendant was concluded as to the matters alleged in his subsequent motion to set aside the verdict and judgipent. It follows that the judge did not err in disallowing the proposed amendment, and in dismissing the motion to set aside the verdict and judgment.
Judgment affirmed.
All the Justices concur. Alston, Alston, Foster & Moise, for plaintiff in error. James IT. Austin and Etheridge & Etheridge, contra.