Carlton v. Carlton

• Decision Date: 31 July 1871
• Citation: 44 Ga. 216
• Parties: J. M. B. CARLTON, plaintiff in error. v. ANNIE E. CARLTON,defendant in error.
• Court: Georgia Supreme Court

44 Ga. 216

J. M. B. CARLTON, plaintiff in error. v. ANNIE E. CARLTON, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Alimony. Imprisonment for Debt. Contempt. Before Judge Hopkins. Fulton County. Chambers. July, 1871.

Said parties married in March, 1869. In July, 1870, she sued him for a divorce, a vinculo matrimonii. The ground was cruel treatment. She appended to her libel a schedule of his real property, valued at $5,600 00, and of personalty, valued at about $250 00. In August, 1870, Judge Lochrane, then presiding, granted her $30 00 per month from the 1st of June, 1870, the date of separation, for temporary alimony, and $150 00 cash, as counsel fees. He took the matter to the Supreme Court for review. There it was dismissed because prematurely brought up. Meanwhile she filed a bill to enjoin him from conveying away certain of said realty and to set aside a conveyance of part of it already made to his brother.

Failing to pay, Carlton was called on, by Judge Hopkins, then presiding, to show cause why he should not be attached for contempt. He answered, setting forth his failure to get a hearing in the supreme Court, averring that he had no property, was a laborer at $25 00 per month, and that his wife was not, under the circumstances of the separation, entitled to any alimony, and prayed a modification of Judge Lochrane's order. The cause was heard in July, 1871.

Mrs. Carlton showed that she was living with her father, who was old, had a large family and but little means; that she had syphilis, contracted prior to her separation, (of which she was ignorant when she sued for the divorce), that it cost her $28 00 per month to have medical treatment therefor. She showed that the rental of the realty in the schedule was nearly $1,000 00 per annum. She testified to the allegedacts of personal violence upon her by her husband.

*Her brother testified that he heard her husband say, before the separation, that he would sell his property or fix it so that she could get none of it, and then leave her, and that, after the separation, he heard defendant's brother say that she need not sue, for the defendant had sofixed his property that she could get none of it. It was shown that defendant was a good business man, and that he ought to command $1,200 00 per annum as a clerk.

On the contrary, defendant and his brother testified that so much of the realty which was conveyed to his brother was so conveyed six months prior to the separation, bona fide, for valuable consideration, and showed how it was paid for. As to the other lots, he showed that they belonged to his former wife, and testified that prior to his marriage with this former wife he agreed verbally with her that all that property should ever be held by him in trust for her and her children; and she left a son, still surviving; he had always given it in for taxation as trust property, and never claimed it as his own. He testified that this suit and the talk about him had rendered him unable to get work, and that he had been employed but part of his time, and first at $50 00 per month and then at $25 00 per month. He said it took all of this to support himself. The evidence as to what was necessary to support his wife ranged from $12 00 to $30 00 per month. He said that her counsel had sued out a fi. fa. upon the former order and it was levied upon part of said realty, but it did not belong to him. He denied ever having sexual intercourse with any other woman during his cohabitation with her; denied ever having any venereal disease; denied having stated what her brother had sworn to, and stated that he had never acted cruelly towards his wife, but had been kind and indulgent to her, etc. And an affidavit of their negro servant supported this last assertion. The Chancellor ordered him to pay, within five days, $75 00 for attorney's fees, $100 00 for past alimony, and $20 00 per month for future, temporary alimony, and upon failure to comply with any part of this order that he be committed to jail. *The law having been changed, he brought this up for review. He averred that the Chancellor erred in...