Crew v. Hutcheson

Decision Date07 June 1902
Citation42 S.E. 16,115 Ga. 511
PartiesCREW et al. v. HUTCHESON.
CourtGeorgia Supreme Court

DIVORCE—ALIMONY—ACTION ON BOND—LIABILITY OF PARTIES.

1. A money judgment for permanent alimony in favor of a wife against her husband, payable in monthly installments, beginning after the expiration of five years from the date of their marriage, does not bar an action by her, against him and a surety, upon a bond given under section 388 of the Penal Code.

2. The liability of the principal obligor and his surety on such a bond is not affected by wrongful conduct on the part of the wife after the marriage; the husband being bound to maintain and support her and her offspring, during the period fixed by the bond, without reference to her behavior. It was in the present case proper for the trial judge, ex mero motu, to decline to allow the defendants to sustain by proof a defense based upon alleged misconduct on the part of the wife. Per Little, Fish, and Cobb, JJ.

3. The plaintiff in an action upon such a bond is not entitled to recover an amount greater than that which would have been sufficient to adequately support the wife and her offspring, if any, for the period or periods elapsing, before the bringing of the suit, during which support was withheld. Per Simmons, C. J., Lumpkin, P. J., and Little, J.

3. See Bastards, vol. 6, Cent Dig. § 227.

(Syllabus by the Court.)

EiTor from superior court, Haralson county; C. G. Janes, Judge.

Action by T. A. Hutcheson, ordinary, against S. F. Crew and others. Judgment for plaintiff. Defendants bring error. Reversed.

W. R. Hutcheson and E. S. & G. D Griffith, for plaintiffs in error.

Edwards & Ault, for defendant in error.

LITTLE, J. Thomas A. Hutcheson as ordinary of Haralson county, brought an action for the use of Cora Delia Crew, "formerly Delia Shelnutt, " against S. F. Crew as principal, and M. J. Crew as surety, upon a bond in the sum of $750, which they, in pursuance of a requirement made under section 388 of the Penal Code, had executed on the 17th day of August, 1895. This bond was made payable to J. W. Kelley, ordinary of said county, and his successors in office, and its condition was that "the said S. F. Crew shall maintain and support the said female, the said Delia, and her child or children, if any, for the period of five years."

The petition alleges that she and S. F. Crew were married on the day last mentioned, and the fourth paragraph thereof reads as follows:

"Your petitioner further shows that the said S. F. and Delia lived together as man and wife from the time of their marriage, as aforesaid, until the first of August, 1897, when the said Delia was compelled to flee from the home of the mother of the said S. F. by reason [of] the inhuman and cruel treatment of the said Delia by the said S. F. Crew. The said S. F. Crew refused tosupport and maintain the said Delia as his wife, and compelled her to work and support herself at the home of his mother, the said M. J. Crew. He cursed and abused her, and procured his mother, the said M. J., to do the same, and, as above stated, she was compelled to flee to the home of relatives for protection and support."

The fifth paragraph of the petition contains an averment that the defendants are indebted to the plaintiff, "for the use of the said Cora Delia Crew, * * * the sum of six hundred dollars for her said support and maintenance for the period of five years from the date of said marriage to the present date, " and prays for a judgment in that sum. There is in the petition no allegation of the existence of a child at the time of the bringing of the action. The petition was filed about four years after the marriage, and apparently it was the idea of the pleader that the defendants were, under the bond for $750 covering a period of five years, chargeable at the rate of $150 per annum, thus making $000 for the four years indicated.

The fourth and fifth paragraphs of the defendants' answer are as follows:

"Par. 4. Plaintiff C. D. Crew and the deft S. F. Crew lived together as man and wife until the time alleged in this paragraph; all of the balance of the 4th paragraph is every word untrue.

"Par. 5. The fifth paragraph is untrue, Defts. are not indebted to said usee one cent whatever for support. She was well supported and cared for while she remained at the home of said deft. M. J. Crew, and she left said home of her own accord, without any wrong treatment from these defendants whatever. Defts. believe, and charge from what they have since learned, that said usee was persuaded by her mother and others to leave deft S. F. Crew and sue him on the bond now sued on. Defendant further says that he at all times treated her as well as he was able, and at no time did he give her any cause to leave him, and stay as she has, and at one time after she left he went to Yorkville, in Paulding county, to get her to return home, and she refused to see him at all, her sister stating to deft, that she would not return. Deft, also wrote two letters to said usee to return, and she refused to return. Defts. therefore ask to be discharged, with their reasonable costs."

The case was called for trial on the 20th day of July, 1901. After the parties had announced "Ready, " and a jury had been stricken, the defendants filed an amendment to their answer, in which they set up, in substance, the following facts: On the 19th day of July, 1901, the plaintiff's usee upon a suit for divorce and permanent alimony, which she had previously instituted against S. F. Crew, obtained a second verdict granting her a total divorce. This verdict also embraced a finding in favor of the plaintiff in that suit for "the sum of $6.00 per month as permanent alimony, to be paid as follows: $6.00 on the 1st of each month during her single life, beginning 1st day of August 1901." A judgment in accord with this verdict was duly entered July 20, 1901. After setting forth these facts, it was in the amendment alleged that inasmuch as the suit for permanent alimony and the action on the bond in this case were "for one and the same thing, both being for support and maintenance of the said usee Cora D., " and she had "elected to proceed with said application for permanent alimony, instead of insisting on her rights, if any she had, under the bond sued on in this case, " the right of the plaintiff to recover therein had become barred, and accordingly the present action should abate, for otherwise there would be two judgments in favor of the plaintiff's usee upon one and the same cause of action. It appears that this amendment was not only offered, but actually filed, in the office of the clerk; and the court, on motion of plaintiff's counsel, passed an order striking the same. The case then proceeded to trial. The plaintiff put in evidence the bond sued on, but offered no testimony. There was an admission by the defendants that, after the separation, the husband contributed nothing to the wife's support The court, of its own motion, refused to allow the defendants to introduce any evidence to sustain their original answer, and directed a verdict for the plaintiff for $600. To all of the rulings indicated above, the defendants excepted.

1. As will have been observed, the marriage took place on the 17th day of August, 1895. The period of five years covered by the bond therefore expired on the 17th day of August, 1900. The judgment requiring S. F. Crew to pay permanent alimony to Mrs. Cora D. Crew at the rate of $6 per month expressly postponed the beginning of the monthly payments until the 1st day of August 1901. Accordingly, it is obvious that the period during which it was contemplated that the wife should be supported by these payments embraced no part of the period as to which the bond was operative. While it is true that the suit for permanent alimony was begun before the five years expired, it is to be noted that the defendants to the action on the bond did not set up as a defense thereto the pendency of the proceeding for permanent alimony. Had they done this, an altogether different question would have been presented. As the present case stood when the amendment to the defendants' answer was actually filed, not only had a judgment already been rendered for permanent alimony, but the same, on its face, showed that it gave to Mrs. Cora D. Crew no recovery whatever for that period of time during which the bond entitled her to demand a support from S. F. Crew. It is therefore clear, we all think, that the amendment set up no good defense, and thatthe court did right in striking it on motion of the plaintiff's counsel.

2. In the case of Duke v. Brown, 113 Ga. 310, 38 S. E. 764, this court held: "The undertaking of the principal obligor and the securities in such a bond is not at all dependent upon the conduct of the female after the marriage. He must maintain and support her and her offspring, for the period fixed in the bond, without reference to her conduct." Three of us still adhere to the view then entertained as to this point. It appears from the record now before us that the defendants in their answer set up, as a defense, alleged misconduct on the part of the wife. This defense was not challenged either by demurrer or by a motion to strike the same, but at the trial the court, of its own motion, declined to allow the defendants to introduce any evidence in support thereof. In pursuing this course his honor below was evidently endeavoring to follow the ruling made by this court in the case just cited, and a majority of us think that this was eminently proper. In support of this view, it is only necessary to refer to what is said with respect to this question of practice in the opinion filed in the present case by Mr. Justice COBB.

3. It only remains for the writer to briefly discuss the question dealt with in the third headnote. Did the facts appearing warrant the direction of a verdict for $600, the full amount for which the plaintiff sued? This action of the court was...

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