Cunningham v. Faulkner, (No. 5512.)

• Decision Date: 13 October 1926
• Docket Number: (No. 5512.)
• Citation: 163 Ga. 19,135 S.E. 403
• Parties: CUNNINGHAM v. FAULKNER.
• Court: Georgia Supreme Court

163 Ga. 19

135 S.E. 403

CUNNINGHAM

v.FAULKNER.

(No. 5512.)

Supreme Court of Georgia.

Oct. 13, 1926.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Suit by Mrs. Marguerite Cunningham, now Faulkner, against S. O. Cunningham. Judgment for plaintiff, and defendant brings error. Affirmed.

Hunter & Daly, of Macon, for plaintiff in error.

W. A. McClellan and Thos. A. Jacobs, Jr., both of Macon, for defendant in error.

BECK, P. J. In 1923 a suit for divorce and alimony was filed by Mrs. Marguerite Cunningham against her husband, S. O. Cunningham, which came on finally to be heard November 20, 1924, when the jury trying the case rendered a verdict finding a total divorce between the parties and removing their disabilities, and further, that:

"The defendant shall pay the plaintiff, Mrs. Marguerite Cunningham, for the use of herself and minor child, the issue of said marriage, the sum of $25 monthly, payable on the 5th day of each month, beginning on the 5th day of December, 1924, and payable on the 5th day of each month thereafter, until the minor child of the parties, Elizabeth Jones Cunningham, nowof the age of 3 years, arrives at the age of 18 years, at which time payment of alimony is to cease and be discontinued. The said sum of $25 monthly to be paid as aforesaid until the said child arrives at 18 years of age; this sum being awarded to plaintiff as permanent alimony."

It appears from the evidence in this case, which was a rule brought by the divorced wife against Cunningham, that so much of the decree as allowed alimony was by agreement of the parties, the former wife testifying that:

"The verdict and judgment was by agreement, the monthly allowance to be $25 for the support of the child; nothing for me."

The defendant, as to this, testified:

"I agreed to pay as alimony to my wife, and for the support of my child, $25 per month until my wife should remarry."

The wife further testified that the husband was not present when the agreement was made. The monthly installments of alimony were paid regularly until April 5, 1926. After that the defendant in the divorce case, the respondent in this case, refused to make further payments, and rule was brought against him when two of the payments became due and were not met. The defendant answered, and contended that he should not be required to pay any further sum, for the reason that since the decree awarding permanent alimony the plaintiff, his former wife, has remarried, and further contended that the decree was void, because it did not set out and specify what proportion of the amount allowed should be for the support of the wife and what proportion should be for the support of the child. These points were raised by demurrer and answer. To the judgment overruling the defendant's demurrers exceptions pendente lite were duly certified and filed, and in the exceptions pendente lite it is recited that the court overruled said general and special demurrers on each and every ground thereof, and then the plaintiff excepts to that ruling in the following language: "To which ruling the respondent to said rule excepted, and hereby excepts and assigns the same as error."

1. This exception was sufficiently definite and specific. And where in a bill of exceptions sued out to this court, after reciting the certification and filing of exceptions pendente lite to the overruling of the demurrers, the plaintiff in error adds, "and now excepts to same and assigns as error the overruling of his demurrers, special and general, to said petition and rule, " this sufficiently assigns...