Bell v. Bell
| Decision Date | 10 October 1949 |
| Docket Number | 16781. |
| Citation | 56 S.E.2d 289,206 Ga. 194 |
| Parties | BELL v. BELL. |
| Court | Georgia Supreme Court |
Rehearing Denied Nov. 18, 1949.
Syllabus by the Court.
In an action for divorce and alimony by a plaintiff who has entered into a ceremonial marriage with the defendant, where the evidence discloses that the defendant had been divorced by a former wife, still in life, and the jury had placed disabilities on his remarriage, which disabilities had never been removed, the plaintiff could not prevail. Although the plaintiff entered into the marriage in good faith, the defendant would not be estopped from asserting the invalidity of the marriage in bar of an action for divorce and alimony.
Mrs Alma Deaton Bell brought and action in Fulton Superior Court for divorce and alimony against Van Tillman Bell. The action was based on alleged cruel treatment. The defendant filed an answer denying the allegations of the petition as to cruel treatment.
On the trial of the case, the plaintiff testified that she married the defendant in January, 1931. She introduced testimony with reference to his treatment of her during the years of their marriage.
The defendant offered the testimony of Lula Mae Young, who stated that she married the defendant on June 24, 1916, that the document exhibited to her, being Case No. 39171 in Fulton Superior Court, styled Mrs. Lula Mae Bell versus Van Tillman Bell, filed December 13, 1917, was an action in which the witness was plaintiff and the defendant in the present case was defendant. Van Tillman Bell, sworn in his own behalf testified that he was the person named as defendant in Case No. 39171, and that he had never filed an application in Fulton Superior Court, or any other court, for a removal of the disabilities that were imposed on him in the decree of the court dated September 10, 1919. On cross-examination he stated, that at the time he married the present plaintiff he did not know that his disabilities had not been removed, and he represented to her that he was a divorced man. He first learned of the contents of the former divorce case on the previous day. J. H. Bush, clerk of the court, testified that an application had never been filed by the defendant in Fulton Superior Court for the removal of his disabilities in Case No. 39171.
The plaintiff, recalled in her own behalf, testified as follows:
On motion of the defendant's counsel, the trial court directed a verdict in favor of the defendant. Within thirty days the plaintiff filed a motion entitled, 'Motion to modify and set aside directed verdict and judgment for respondent at January term, 1949, Fulton Superior Court, on the 19th day of January, 1949.' On a hearing of the motion, the trial judge passed the following order: 'The within and foregoing motion to modify and set aside coming on before me, and the court being of the opinion that it is a motion to modify rather than a motion for a new trial, as required by the case of Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445, the same is hereby dismissed.' The exception here is to this judgment of dismissed.
Frank Grizzard, Atlanta, William Hall, Atlanta, B. B. Zellars, Atlanta, for plaintiff in error.
Swift Tyler, Atlanta, Harvey Tisinger, Atlanta, Marvin O'Neal, Jr., Atlanta, for defendant in error.
In Huguley v. Huguley, 204 Ga. 692(2), 51 S.E.2d 445, 446, it was held : In the Huguley case, 204 Ga. at page 697, 51 N.E.2d 445, it was pointed out that this ruling was contrary to a statement made in Gault v. Gault, 204 Ga. 205, 48 S.E.2d 819.
Counsel for the plaintiff in error (plaintiff in the court below) states that the written motion seeking to review the directed verdict and judgment was drafted prior to the decision of this court in the Huguley case, that it contains all the necessary elements of a motion for new trial, and that a brief of the evidence is attached thereto. An examination of the motion shows that, while it is denominated a motion to it contains the usual general grounds of a motion for new trial, with several other grounds, and prays that another jury trial be granted. Since the motion is, in substance, the equivalent of a motion for new trial, it will be considered on its merits.
The motion for a new trial contains a ground complaining that the court erred in directing a verdict for the defendant, because the verdict was not demanded by the evidence, there was evidence that would have supported a verdict for the plaintiff, and there were issues of fact which should have been submitted to the jury for determination. In the present case, if it should be found that the order of the trial judge in directing a verdict was not erroneous, it could serve no good purpose to reverse his judgment because he dismissed the motion, instead of overruling it. We will therefore look to the evidence in the case to determine whether or not the verdict was demanded by the evidence, and whether there were issues of fact that should have been submitted to a jury.
The evidence was uncontradicted that the defendant had been previously married, that his former wife had procured a divorce from him, that the jury in that case had imposed disabilities on the defendant to prevent his remarriage, and that the defendant's disabilities had never been removed. There were no allegations in the answer of the defendant in the present case attacking the validity of the ceremonial marriage between the plaintiff and the defendant. The record does not disclose that any objection was made to the introduction of this evidence, and since the defendant could have amended his answer to conform to the evidence, the plaintiff could not, and did not, complain of the variance between the...
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