Ray v. Ray

Lewis, J.

1. It appears from the record in this case, that the judge heard and passed upon the application for temporary alimony in vacation. It does not appear that any objection was made to the hearing in vacation, nor that the judge refused the .alimony for want of jurisdiction to grant the same out of term. It is insisted, however, by counsel for defendant in error, that where a suit for divorce is pending, application for temporary alimony can only be made and heard in term time, and § 2457 of the Civil Code is relied upon to sustain this position. By virtue, however, of the act of 1870, codified in §2461 of the'Civil Code, it is provided that in suits for divorce, the judge presiding may, either in term or vacation, grant alimony. His jurisdiction to pass upon questions of temporary alimony during vacation is recognized by this court in the case of Bender v. Bender, 98 Ga. 717-18.

2. It seems from the record that the main ground relied upon by the wife to justify her separation from her husband was cruelty he had inflicted upon her by circulating reports ..among his neighbors to the effect that she was untrue to her marital vows, and was guilty of illicit intercourse with another person. It is difficult to conceive of greater cruelty that could be inflicted upon the mind of a virtuous woman than a circulation of such reports. The mental anguish thus occasioned would doubtless be more keenly felt, and would produce moré mental pain than could result from personal injuries by physical blows. Unquestionably such cruelty would not only justify a separation, but would sustain an action.for total divorce. Myrick v. Myrick, 67 Ga. 771; Glass v. Wynn, 76 Ga. 319. Under § 2460 of the Civil Code, the judge, on applications for temporary alimony, though the merits of the cause are not in issue, may inquire into the cause and circumstances of the separation rendering the alimony necessary. Such an inquiry being made in this case, it was manifestly error to refuse to hear testimony touching the main cause of separation and of the wife’s complaint. As to whether or not the husband had circulated the reports against the wife’s chastity was necessarily a material question at issue between the parties, and as to whether or not •such reports had reached the ears of the wife was likewise material as illustrating her motive, and the bona fides of her conduct in leaving him, for she could not have deserted him fora •cause of the existence of which she did not know at the time of the separation. The court heard the denial of the husband as to the charges, but refused to hear counter-proof offered by the wife, not only that he had actually made these charges to different persons, but that they had been communicated to her. The court regarding such testimony as illegal must have passed upon the case on the theory that there was no evidence before him supporting the main cause which tended to justify the separation of the wife from her husband. AVe think the erro**,, therefore, in excluding such pertinent and legal testimony requires a reversal of the judgment of the court refusing alimony..

Judgment reversed.

All the Justices concurring..