Bilbo v. Bilbo, (No. 6803.)

• Decision Date: 14 December 1928
• Docket Number: (No. 6803.)
• Parties: BILBO . v. BILBO.
• Court: Georgia Supreme Court

167 Ga. 602

146 S.E. 446

BILBO .

v.BILBO.

(No. 6803.)

Supreme Court of Georgia.

Dec. 14, 1928.

On Rehearing Jan. 23, 1929.

(Syllabus by Editorial Staff.)

Error from Superior Court, Campbell County; John B. Hutcheson, Judge.

Suit by Geneva Peppers Bilbo against C. J. Bilbo. To review a judgment holding defendant in contempt, defendant brings error. Affirmed.

Geneva Peppers Bilbo filed in Campbell superior court her petition against her husband, C. J. Bilbo, for temporary and permanent alimony, and for the writ of ne exeat, alleging that they were living in a state of separation, and that the husband was a resident of the county of Campbell. He was personally served by the sheriff with a copy of the petition and process, on November 21, 1927. The suit was returnable to the February term, 1928. The judge of the superior court granted an order requiring the defendant to give a no exeat bond in the sum of.$200. This bond was given. On March 7, 1928, the court passed an order awarding the wife $20 a month as temporary alimony, payable in weekly installments of $5, until further order, and $25 for attorney's fees. The husband failed to comply with this said order; and the wife, on August 6, 1928, filed her petition to have him attached for contempt of court. The judge passed an order requiring the husband to show cause, on August 18, 1928, why the prayers of the petition should not be granted. On that day the husband appeared and filed his answer. He alleged that the suit for alimony was null and void, for the reason that at the time it was filed, and when the order requiring him to pay temporary alimony and fees was passed, he was not and had not been for a period of 18 months a resident of Campbell county, but was then, and had been since the spring of 1926 and continuously thereafter, a resident of Albany, Dougherty county, and that the superior court of Campbell county had no jurisdiction, but the superior court of Dougherty county had jurisdiction of his person. A demurrer to this allegation was sustained. The court refused to allow counsel for the defendant to go into any matter other than his ability to pay the alimony previously ordered. To these rulings, and to a judgment holding him in contempt, the defendant excepted.

William B. Jones, of Fairburn, for plaintiff in error.

Frank T. Grizzard and H. F. Sharp, both of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

HINES, J. [1] 1. Pleas to the jurisdiction must be made in person, and, when relied on, be pleaded specially unless want of jurisdiction appears on the face of the prdoceeding, in which case it may be taken advantage of on motion. Civil Code 1910, § 5665.

2. A plea to the jurisdiction, when no want of jurisdiction appears on the face of the petition, is a dilatory plea, and will not be considered unless filed at the first term, made in person, and sworn to. Civil Code 1910, § 5641; Smith v. Rawson, 61 Ga. 208; Hall v. Tiedeman, 141 Ga. 602, 81 S. E. 868.

3. Where on November 15, 1927, a wife instituted, in Campbell superior court, a plenary suit against her husband for temporary and permanent alimony and for the writ of ne exeat, alleging that he was a resident of said county at the time of the institution of the suit, and where he was personally served with a copy of the petition and process, returnable to the February term, 1928, of that court, and where he filed no plea to the jurisdiction and after that term, upon the hearing of a rule calling upon him to show cause...