Fleming v. West

• Decision Date: 18 August 1896
• Citation: 27 S.E. 157,98 Ga. 778
• Parties: FLEMING et al. v. WEST et al.
• Court: Georgia Supreme Court

27 S.E. 157

98 Ga. 778

FLEMING et al.

v.WEST et al.

Supreme Court of Georgia.

Aug. 18, 1896.

Divorce — Service by Publication — Alimony.

Where, in a divorce case, service was perfected upon the respondent, as a nonresident, by publication, a decree of divorce, rendered at the first term thereafter, setting apart, as alimony for the wife and a minor child, certain land alleged to be the property of the husband, was, in so far as it affected the title thereto, void as to him, anc¹ as to those claiming under him by a conveyance previously made. The court had no authority or jurisdiction to render any such decree at the appearance term, in so far, at least, as the decree related to alimony.

(Syllabus by the Court.)

Error from superior court, Jackson county; N. L. Hutchins, Judge.

Suit by H. S. West and others against Lena Fleming and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

John J. Strickland and Geo. C. Thomas, for plaintiffs in error.

Erwin & Cobb, Robt. S. Howard, and Lumpkin & Burnett, for defendants in error.

SIMMONS, C. J. The executors of Mrs. Nicey Moon brought their equitable petition in the superior court of Jackson county to recover certain land in that county from the possession of Mrs. Fleming and Mrs. Bell. The defendants claimed title under a decree rendered at the October term, 1873, of Cobb superior court. The case was referred to the judge without a jury, and he held that the decree was void for want of jurisdiction. To this the defendants excepted, and brought the case to this court.

The decree in question was a decree for alimony, rendered in a divorce case. The petition for divorce was filed February 25, 1873, and the case was made returnable to the March term of the court; but the sheriff returned the process with the entry that the defendant was not to be found in the county, and that his information was that he was not in the state. An order to serve the defendant by publication was granted, and at the next term thereafter the following order was passed: "Service in this case having been perfected by publication, it is ordered that the same stand for trial." At the same term the decree in question was rendered. There was no appearance or defense by the defendant. If the defendant in the divorce case was a resident of the state, service by publication was clearly insufficient to give the court jurisdiction; the Code (section 1717) providing that the petition in such cases shall be "served as in other cases, unless the defendant be a non-resident of the state." If he was a nonresident of the state, service could be made by publication. See Code, §§ 1717, 4185. But...