Brightwell v. Brightwell
| Decision Date | 18 September 1925 |
| Docket Number | 4457. |
| Citation | 129 S.E. 658,161 Ga. 89 |
| Parties | BRIGHTWELL v. BRIGHTWELL. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
A motion to dismiss should be construed as one to strike case from docket.
Where prayers for alimony and attorney fees are not based on ground that parties are living in bona fide state of separation, but are incidental to suit for divorce, verdict refusing divorce will carry with it prayers for alimony and attorney fees.
Where first verdict denied divorce, but omitted reference to alimony and attorney fees, and at subsequent term, on retrial, verdict awarding alimony and fees was set aside on husband's motion, to which no exception was taken, and at retrial verdict was returned, awarding alimony and fees, it was error at last trial to refuse to sustain husband's motion to dismiss case.
Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.
Action by L. A. Brightwell against G. V. Brightwell. Judgment for defendant, and plaintiff brings error. Reversed.
W. H Bedgood, of Savannah, for plaintiff in error.
Robt. L. Colding, of Savannah, for defendant in error.
Syllabus OPINION.
A husband sued his wife for divorce; she filed an answer in the nature of a cross-petition, asking for a divorce and the allowance of temporary and permanent alimony and attorney's fees. At the first trial of the case before a jury a verdict was returned, finding against the grant of a divorce to either party, omitting express reference to the allowance of alimony and attorney's fees. The wife made a motion for a new trial on the usual general grounds, which was refused. There was no exception to the judge's refusal of a new trial. At a subsequent term the case was again submitted to a jury in the absence of the husband and his attorney. A verdict and judgment were rendered awarding alimony and attorney's fees, but these were subsequently set aside upon a motion filed by the husband. There was no exception to this judgment. After the judgment was set aside the case was again tried; at this trial the judge overruled a motion to dismiss the case. It was submitted to a jury, and a verdict was returned awarding alimony and attorney's fees. The husband made a motion for a new trial, which was overruled, and he excepted, and assigned error also upon exceptions pendente lite to the judgment overruling his motion to dismiss. Held:
1. The motion to dismiss should be...
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