Dugas v. Dugas
| Decision Date | 04 September 1946 |
| Docket Number | 15537. |
| Parties | DUGAS v. DUGAS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. 'No cause shall be carried to the Supreme Court or the Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto.' Code, § 6-701.
2. Under the terms of the new law governing divorce and alimony neither a judgment nor a verdict and judgment granting the same becomes 'final' within a period of thirty days after its rendition; and one wishing to attack such a tentative or provisional judgment or verdict and judgment must resort to the method provided by the statute for the benefit of 'any person at interest,' and cannot pending the expiration of such period, treat the judgment held in abeyance as allready final, and bring exceptions to this court either directly or by a motion for new trial with exceptions to the judgment overruling the same. It is only after the proceeding outlined by the statute has been complied with, and the judgment or verdict and judgment has thus become final, that a motion for new trial is in order, with exceptions to the order overruling the same, or that direct exceptions are in order, when otherwise permissible.
Statement of facts by JENKINS, Presiding Justice.
Bessie Brady Dugas filed in Rabun superior court a petition for divorce against Graham C. Dugas. The defendant filed an answer denying the material allegations of the petition. The case was tried by a jury under the new statute governing suits for divorce and alimony. (Senate Bill No. 262, Act No. 471 of the General Assembly of 1946). The plaintiff testified in her own behalf, but the defendant failed to submit any evidence, and the jury returned a verdict for the plaintiff, authorizing a total divorce. The defendant's motion for a new trial, which was filed prior to the expiration of 30 days from the date of the judgment, was overruled. The case is before this court by a bill of exceptions to the overruling of a motion for new trial, which assigns error on the judge's charge and certain specified failures to charge. The defendant in error contends that the original judgment was not such a final one as would support a motion for new trial, and that the bill of exceptions complaining of the order overruling the motion for new trial should be dismissed.
E. C. Brannon, of Gainesville, for plaintiff in error.
Jos. T. Davis and Thad L. Bynum, both of Clayton, for defendant in error.
In considering whether under the new divorce statute the original judgment and decree granting a divorce and alimony can be immediately reviewed by direct bill of exceptions brought to this court, or by exceptions taken to the overruling of a motion for new trial, or whether recourse must first be had, during the 30-day period, to the procedure provided for the benefit of any person at interest; it is necessary to consider the relevant provisions of the present statute, which are contained in Senate Bill No. 262, Act No. 471 of the General Assembly of 1946, and which repeal Code, § 30-101, and substitute in lieu thereof the following:
In our opinion an original judgment and decree in favor of divorce is not, to begin with, a final judgment for two reasons--first, because the statute, in express terms, declares that it is not; and, second, because under the provisions of the new statute, it could not be so during said 30-day period, for the reason that the case remains pending in the superior court, subject to a mandatory redetermination by the trial court itself if and when some person at interest may so require by filing his or her written petition to modify or set the same aside. Under the quoted statutory provision, the validity of the judgment, not merely its enforcement, is held in limbo; and in the proceeding authorized by statute, by which the verdict and judgment may be attacked, a jury may be demanded to determine issues of fact, thereby overriding any previous finding thereon by judge or jury. The situation thus differs from those judgments where by their terms the mere enforcement of a final judgment is deferred. In the cases just mentioned, since the validity of the judgment is not impaired by such an order, it is properly treated as 'final,' and a review by the appellate court can be had immediately as in other cases. Moody v. Muscogee Mfg. Co., 134 Ga. 721(1)(a), 68 S.E. 604, 20 Ann.Cas. 301; Capital City Tobacco Co. v. Anderson, 138 Ga. 667, 75 S.E. 1040; Miller & Co. v. Gibbs, 161 Ga. 698, 699(2), 132 S.E. 626; Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 139 Ga. 180, 77 S.E. 86.
The situation with respect to judgments of divorce and alimony are more nearly analogous to those cases where a conditional judgment or order is entered, but a stated period is allowed for a perty to avoid its adverse effect by complying with the specified mandate of the court within a stated time. In that class of cases, exceptions taken to the appellate court prior to the expiration of the period thus allowed are held to be premature. Peyton v. Rylee, 191 Ga. 40, 11 S.E.2d 195; Upshaw v. Ragsdale, 192 Ga. 11, 14 S.E.2d 486; Sellers v. McNair, 42 Ga.App. 731, 157 S.E. 373.
Under the old divorce law, it took two separate and independent verdicts at different terms of the superior court in order to obtain a decree for divorce or for divorce and permanent alimony. However, the validity and finality of the first verdict, as such, was not held in abeyance. Each was valid and final in so far as it was concerned; and therefore exceptions could properly be taken to the first of the two verdicts without waiting the rendition of the second. Rorie v. Rorie, 132 Ga. 719, 721, 64 S.E. 1070; Gholston v. Gholston, 31 Ga. 625, 632. The statute now provides for only one verdict or decree, but, apparently in lieu of the previous provisions for two separate and independent verdicts, it now in effect provides that the verdict or judgment shall be held in abeyance, without becoming 'final,' for a period of 30 days, during which it can be attacked 'by any person at interest' in the trial court on written petition, with the right to trial by jury on issues of fact. This in practical effect gives a right in favor of either party similar to what was previously the required second verdict but, in default of any such attack within 30 days, the tentative or provisional judgment or the verdict and judgment, without more, thereupon becomes final and enforceable. Under the new law, in order for a judgment or a verdict and judgment for a total divorce or a total divorce and permanent alimony to become valid and final, it thus takes, not only the rendition of such a judgment or verdict and judgment, but also the expiration of a 30-day period thereafter without an attack being made; or if an attack should in fact be made, then the original judgment or verdict and judgment becomes final according to whether or not the attack be sustained. Since any person at interest can thus attack within the 30 days allowed, and since the provisions of the old law (Code, § 30-130) with respect to new trials are retained, it would seem that it would create an anomalous situation should one party be allowed to bring exceptions to the Supreme Court while the other party or some other person at interest might within the same period exercise his or her statutory right to attack the judgment or the verdict and judgment in the court below, thus making two simultaneous but separate and independent attacks in different courts. Even if it should be assumed that immediate exceptions taken to this court would operate automatically to stay the other proceeding in the superior court, a multitude of perplexing questions would inevitably arise including questions of res judicata, should this court proceed to determine the case on the old record, including the old evidence, while the later determination in the superior court would proceed, not under the remittitur from this court, but under new and additional pleadings, and on new and different evidence. What except futility would result from such a preliminary adjudication by this court upon the tentative or provisional judgment or verdict and judgment of the trial court, with the trial court still retaining jurisdiction to rehear and redetermine the issues under new and additional pleadings and new evidence? We are, therefore, of the opinion that the provisions with reference to a trial by either judge or jury of the issues raised by a petition filed to set aside or modify the tentative or...
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