Crenshaw v. Crenshaw

• Decision Date: 06 October 1944
• Docket Number: 14955.
• Citation: 32 S.E.2d 177,198 Ga. 536
• Parties: CRENSHAW v. CRENSHAW.
• Court: Georgia Supreme Court

32 S.E.2d 177

198 Ga. 536

CRENSHAW v. CRENSHAW.

No. 14955.

Supreme Court of Georgia

October 6, 1944

Rehearing Denied Nov. 22, 1944.

Georgia C. Crenshaw, in pro. per., and James J. Slaton, both of Atlanta, for plaintiff in error.

Howard Camp & Tiller, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

BELL Chief Justice.

1. 'A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.' Code, § 110-501. 'A former recovery on grounds purely technical, and where the merits were not and could not have been in question, shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For the former judgment to be a bar, the merits of the case shall have been adjudicated.' Code, § 110-503.

2. Where a husband filed against his wife in the superior court of Fulton County, a suit for total divorce on the ground of cruel treatment, alleging that he was a bona fide resident of Georgia and had been for more than twelve months before instituting the action, and that his wife was a resident of Illinois, and where the wife appeared and filed an answer denying the allegations of the husband as to his residence in Georgia, and further denying his allegations as to cruel treatment, and where upon the pleadings as thus framed two verdicts at different terms of the court were returned, each finding for the plaintiff a total divorce, and a decree of total divorce was thereupon entered in his favor, a proceeding filed by the wife at a subsequent term of the court, showing the facts above stated and seeking to have such verdicts and judgments set aside on the ground that the husband was in fact a non-resident of Georgia at the time of instituting his action for divorce, and that his claim of residence in Georgia constituted a fraud both on the defendant and on the court, was subject to demurrer as showing a previous conclusive determination of the issues as to residence and jurisdiction, in the absence of any averment indicating that the wife did not know the facts touching these issues or could not by due diligence have discovered them in time to present them to the court before the final verdict in the divorce action. Fuller v. Curry, 162 Ga. 293, 133 S.E. 244; Bilbo v. Bilbo, 167 Ga. 602 146 S.E. 446; Raleigh Co. v. Seagraves, 178 Ga. 459 173 S.E. 167; Sumner v. Sumner, 186 Ga. 390, 197 N.E. 833.

(a) Moreover, when the motion or petition to set aside the verdicts and judgment is construed most strongly against the pleader, as should be done on general demurrer, it affirmatively appears that, before the verdicts and decree were rendered, the wife was fully aware of all the pleaded facts. Krueger v. MacDougald, 148 Ga. 429(1), 96 S.E. 867.

(b) Notwithstanding the State has an interest in all divorce cases (Watts v. Watts, 130 Ga. 683, 61 S.E. 593), the wife as the party attacking the verdicts and judgment, was not relieved of their conclusiveness merely because they were rendered in a divorce case. Nor was she entitled to set them aside except under rules applicable to such attacks generally. Leathers v. Leathers, 138 Ga. 740(1), 76 S.E. 44; Fuller v. Curry, 162 Ga. 293, 133 S.E. 244; supra; Drake v. Drake, 187 Ga. 423(5), 1 S.E.2d 573; Young v. Young, 188 Ga. 29, 2 S.E.2d 622; Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 807; Davis v. Davis, 191 Ga. 333, 11 S.E.2d 884. Nothing to the contrary was held in Jones v. Jones, 181 Ga. 747, 184 S.E. 271, or Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834, 130 A.L.R. 87, both of which cases are distinguishable on their facts from the instant case.

(c) In the brief filed for the wife in this court, it is stated that all concerned have apparently treated the present proceeding as an equitable petition to set aside the verdicts and judgment, and in what has been above ruled this court has dealt with the suit upon that theory. In this view, the court did not err in sustaining the general demurrer and dismissing the proceeding so far as it related to residence and jurisdiction.

3. The proceeding to set aside the verdicts and judgment was captioned as a pleading in a divorce suit, and prayed only that 'the verdicts and judgment for divorce in the above stated case be set aside for fraud by proper order of the court and declared null and void.' Apparently, therefore it was not an independent suit in equity as suggested, but was a motion to set aside a judgment based on matters not appearing on the face of the record, and was...