Carnes v. Carnes

Lumpkin, J.

(After stating the foregoing facts.)

1. Temporary alimony, pending a suit for permanent alimony, was granted to the wife, and the husband excepted. The evidence was sufficient to sustain the judgment. The husband filed 'a plea to the jurisdiction, but the evidence on that subject, as on others, was in conflict, and his mere insistence that the court was without jurisdiction did not prevent the presiding judge from granting temporary alimony to the wife until, on final trial, the question could be ultimately tested. The awarding of a reasonable attorney’s fee to the plaintiff was also proper. She needed counsel for the very purpose of contesting this plea and the contentions of the defendant. This is so, although there may have been no direct evidence as to the value of the services rendered or to be rendered. Sweat v. Sweat, 123 Ga. 801 (52 S. E. 716).

2. The defendant made a motion to set aside the order granting the writ of ne exeat. One ground of the motion was that the order required the defendant to give a bond with a condition different from that required by law, or, in défault thereof, to be imprisoned. The Civil Code (1910), § 5461, declares that “The defendant may, in all cases, relieve himself or his property, or the specific property, from the restraint imposed, by giving bond in double the value of plaintiff’s claim, with good security, to the officer serving the process, for the forthcoming of each or either (according to the tenor of.the writ), to answer to complainant’s claim, or abide by the order and decree of the court. The judge granting the writ may, in his discretion, require a larger bond.” Sometimes the writ is issued only to restrain a person from leaving the jurisdiction of the State; sometimes it is issued against a person who is removing or attempting to remove property beyond the jurisdiction. The bond which may be required is to be shaped in accordance- with the nature of the proceeding. If the application for the issuance of the writ of ne exeat is made in connection with an application for alimony, and no removal of property is involved, but merely an intended leaving of the State by the defendant, the judge ought not to require a bond conditioned both that the defendant will not remove beyond the jurisdictional limits of the State and also that he will pay any judgment that may be found against him in favor of the plaintiff. This would not only require the husband to give security that he would remain in the jurisdiction, but also that he would be solvent and pay the money judgment. McGee v. McGee, 8 Ga. 295 (52 Am. D. 407); Lamar v. Lamar, 123 Ga. 827 (51 S. E. 763, 107 Am. St. R. 169, 3 Ann. Cas. 294). In the present case, upon presentation of the petition the presiding judge passed an order requiring the defendant to give bond “not to remove beyond the jurisdictional limits oí the State of Georgia, and conditioned to pay any judgment that may be found against him in favor of the plaintiff,” or, in default thereof, to be imprisoned. The writ issued by the clerk followed the terms of the order. In the brief of counsel for defendant in error it was conceded that the order should not have been in the conjunctive; but it was urged that the bond which was actually given and accepted by the sheriff was conditioned to be void if the defendant '“shall be forthcoming to answer the complainant’s complaint, or shall abide by the order and decree of the court,” and that this relieved the error or inadvertence in the terms of the order and of the writ. Upon a motion to set aside an erroneous order for the writ, the fact that the bond did not strictly follow the order or the writ did not serve to correct the order as it stood. Nor was there any motion to correct it.

3. A writ of ne exeat is a summary proceeding. It issues ex parte, and the person of the defendant is seized and he is incarcerated unless he gives the bond required. “In every application for a writ of ne exeat, the allegations of the bill must be verified by one ór more of the complainants.” Civil Code (1910), § 5463. The law does not provide for a preliminary hearing before the writ issues. The defendant’s only method of relieving himself from custody is by complying with the requirement as to bond, or by moving the judge for a revocation or modification of the order, or perhaps by demurrer to the petition embodying this prayer with others. It is therefore of importance that the petition should be verified before the order is granted. Wallace v. Duncan, 13 Ga. 41; Moore v. Gleaton, 23 Ga. 142; Holliday v. Riodan, 25 Ga. 629. The point that there is a lack of proper verification can be made by the principal. If he fails to do so, the sureties can not set up want of verification in a suit on the bond. Blue v. Sheppard, 28 Ga. 566; Bryan v. Ponder, 23 Ga. 480.

In the present case, the petition had annexed to it what purported to be an affidavit of the plaintiff, with a jurat signed by a notary public and ex-officio justice of the peace. But the unconiradicted evidence showed that in fact the affidavit had not been sworn to as required by law. The plaintiff and one of her attorneys made oath that she called up the notary over the telephone, and told him she was swearing to a petition for alimony against her husband, and that the attorney would bring it to the notary for his signature; and that he said, “All right.” The attorney further made affidavit that he carried the paper to the notary and told him that it was such, and the notary answered, “Yes, she called me and told me she was swearing to same.” The notary made affidavit that the plaintiff called him up by telephone and said she had just “signed a paper” in the case of herself against her husband for alimony, ne exeat, etc., and wanted him “to sign the same as a witness for her,” and that her attorney would bring it to him to sign, and that the attorney brought the paper and the notary signed it without ever seeing the plaintiff about the matter. If the evidence of the notary be taken as correct, there was not the slightest effort to administer an oath, but a mere statement over a telephone wire that the plaintiff had signed a paper, and desired the notary to sign as a witness. If the testimony of the plaintiff and her attorney be taken as correct, there was still no legal making of an affidavit. In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath. There must be some solemnity, not mere telephone talk. Long-distance swearing is not permissible. Telephonic affidavits are unknown to the law. A moment’s thought will show a sound reason for this. An officer hears a voice coming through the receiver of a telephone. For identification he must rely on recognition of the voice (if he knows it) and the statement of the person as to who he or she is. Eeference is made to some paper, more or less fully described. Later a third person presents to the notary a paper as being the one sworn to. How does the notary know, except by hearsay, that the paper presented is the identical paper mentioned? If this is an oath, when is it taken, — when the telephone message is sent, or when the paper is later presented by the third person? Where is it taken, — at the place where the affiant is, or that where the officer is ? Suppose they should be in different counties, where would be the jurisdiction of a prosecution for perjury, if the oath were untrue? It will be seen that great confusion might easily arise from such a system. Britt v. Davis, 130 Ga. 74 (60 S. E. 180); Mitchell v. Masury, 132 Ga. 360(8) (64 S. E. 275).

It was contended that if there was a defect in the verification it was curable by amendment. On the hearing of the motion and of the application for temporary alimony the plaintiff testified by affidavit, among other things, that “she now swears that the allegations then made are true.” But, if the absence of verification was curable, testifying at the hearing of the alimony proceedings that certain things were true did not amount to an amendment of the affidavit on which the writ of ne exeat was based.

4. The plaintiff charged abandonment by her husband. There was no charge of adultery. He alleged exemplary conduct on his part, and that she went to her father’s home, and after a time refused to answer his letters. She testified that she found in his pocket certain letters. They were from another woman, and were of a very affectionate character. They were not inadmissible on the ground that they were licentious in character and intended to show that the defendant was guilty of adultery, and that they could not be admitted in evidence on the affidavit of the wife as to the finding of them.

5. It was suggested in the brief of counsel for the defendant in error that the order of the court affirmatively passed on the application for alimony, but did not in terms deny the’ motion to revoke the order granting the writ of ne exeat. But both were heard together. The court announced that he would hear evidence in support of the motion, and on the main case at the same time, “in the interest of time.” After hearing evidence as to both, he granted one and did not grant the other. In signing the bill of exceptions, he gave no indication that he intended to withhold judgment on the motion, or consider it further. The bill of exceptions contained various assignments of error, based on the fact that the court erred in not'dismissing the writ; and the judge certified such bill of exceptions. We think it evident that he did intentionally decline to pass the order for which the motion was made, and that the exception thereto can be properly considered.

Further than as above declared, there is no merit in any of the assignments of error. Having obtained a reversal in part, the plaintiff in error is entitled to costs of the exception.

Judgment affirmed in part and reversed in part.

All the Justices concur.