Blalock v. Blalock
| Decision Date | 10 October 1958 |
| Docket Number | No. 20210,20210 |
| Citation | 105 S.E.2d 721,214 Ga. 586 |
| Parties | Tom Watson BLALOCK v. Elizabeth Sue BLALOCK. |
| Court | Georgia Supreme Court |
Bullock, Yancey & Mitchell, Kyle Yancey, Harris Bullock, Atlanta, for plaintiff in error.
Rex T. Reeves, Merrell Collier, Atlanta, for defendant in error.
Syllabus Opinion by the Court
1. the notation on the bill of exceptions by Judge Alverson that Judge Pye, the presiding judge, was out of the circuit on July 3, 1958--the date on which counsel had notified opposing counsel that he was tendering the bill of exceptions--together with the certificate by Judge Pye that he was without the circuit at the actual time it was tendered, shows clearly that the 'tender' to the Clerk of the Superior Court of Fulton County on that date, who retained the bill of exceptions until Judge Pye returned to the circuit and thereafter certified the same, met the requirement of Code (Ann.Aupp.) § 6-902 (Ga.L.1957, pp. 224, 244), and the motion to dismiss the bill of exceptions, for lack of proper tender within the 30 days allowed, is without merit. The requirements of the law are not to create obstacles, but to require due diligence, and it can not be said that the plaintiff in error was not diligent in this instance.
2. The fact that the brief of evidence was not approved at the time the bill of exceptions was tendered is not a sufficient reason for this court to dismiss the bill of exceptions for lack of jurisdiction. The brief was approved at the time the bill of exceptions was certified and approved as true. Thus when the record reached this court, it contained an approved brief of evidence as required by Code (Ann.Supp.) §§ 6-801, 6-802 (Ga.L.1953, No.Sess., pp. 440, 447) which is sufficient for this court to pass on all exceptions raised. While in Days v. Atlanta & Charlotte Air-Line Ry. Co., 101 Ga. 785, 29 S.E. 21, cited by counsel in support of the motion, this court dismissed the writ of error because the tendered bill of exceptions stated that there was a brief of evidence approved by the court and 'is of file and a part of the record,' when in fact the actual brief of evidence in the record attached to the bill of exceptions was approved seven days after the bill of exceptions was tendered--this case differs in that the bill of exceptions specifies 'the brief of evidence, including the order of the court approving the same as such.' The opinion in the Days case stated that the court was unable to recognize the brief of evidence as the one referred to in the bill of exceptions. It thus differs on its facts from the instant case, where the brief shown is the only brief of evidence in the case.
3. The bill of exceptions, having plainly specified the rulings complained of and set forth the alleged errors requires no special prayer or request for the issuance of a writ of error. See Code (Ann.Supp.) § 6-901 (Ga.L.1957, pp. 224, 232); Higgins v. Cherokee Railroad, 73 Ga. 149; Fulton County v. Philips, 208 Ga. 795, 69 S.E.2d 865. For all the reasons stated in headnotes 1, 2, and 3, the motion to dismiss is without merit.
4. An alimony decree awarding a given sum for the support of the wife and children can not be prorated among them so as to separate the amount awarded to the wife and to the children. Crouch v. Crouch, 140 Ga. 76, 78 S.E. 408; Cunningham v. Faulkner, 163 Ga. 19, 135 S.E. 403; Estes v. Estes, 192 Ga. 100, 14 S.E.2d 680; Roberson v. Roberson, 210 Ga. 346, 80 S.E.2d 283. While the decree in this case allows a reduction of $15 per month as each child reaches majority the award is to the group as a family unit, and this court can not attempt to construe or clarify the decree so as to attempt to separate the amount awarded to the mother from the amount awarded to the children. See Carswell v. Shannon, 209 Ga. 596, 74 S.E.2d 850. It follows that the court did not err in sustaining the motion to strike certain paragraphs of the answer, setting up a remarriage of the parties and...
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