Gaither v. Gaither

• Decision Date: 11 April 1950
• Docket Number: No. 17030,17030
• Citation: 206 Ga. 808,58 S.E.2d 834
• Parties: GAITHER v. GAITHER.
• Court: Georgia Supreme Court

Page 834

58 S.E.2d 834

206 Ga. 808

GAITHER v. GAITHER.

No. 17030.

Supreme Court of Georgia.

April 11, 1950.

Syllabus by the Court.

1. Although the final judgment is excepted to on the general ground that it is contrary to law, yet, an examination of the record disclosing that antecedent rulings, duly excepted to in the bill of exceptions, entered into and affected the final judgment, the bill of exceptions is sufficient to present to this court for decision the antecedent rulings excepted to and the final judgment in so far as it is affected by such antecedent rulings.

(a) Where, as here, the judgment of the trial court is adverse to the defendants, one of them can except and bring the case to this court without joining the other plaintiffs in error.

(b) There is no merit in the motion to dismiss the bill of exceptions.

2. The cross-petition in the instant case, seeking to set up the alleged agreement under which a void consent judgment for alimony was based, was germane to the original suit brought by the husband to set aside such judgment, and, as against the demurrers that were interposed thereto, set forth a cause of action for the relief prayed.

This case was previously before the Supreme Court. Gaither v. Gaither, 205 Ga. 572, 54 S.E.2d 600. Frederick DeLeon Gaither Sr. filed a petition against Mrs. Olivia Gaither and named sheriffs seeking to set aside a consent judgment for alimony, which was alleged to be void because it was a permanent judgment rendered before the appearance term, and for injunctive relief. A decision was rendered holding that the husband's petition, as against general demurrer, set forth a cause of action for cancellation of such judgment.

After return of the case to the trial court, but before the issues of fact were decided and final judgment was entered thereon, the wife filed an amended answer in the nature of a cross-petition, seeking to set up an alleged agreement made between the parties for payment by the husband of alimony for their minor children, and praying for a judgment based on such contract. The husband demurred to the wife's amended answer.

On December 12, 1949, certain grounds of the husband's demurrer were overruled, other grounds of his demurrer were sustained, and the wife's amended answer in the nature of a cross-petition was stricken.

On December 13, 1949, the court, passing upon all issues of fact and questions of law by consent of the parties without the intervention of a jury, decreed that the alimony judgment and the execution issued thereon were void, and permanently enjoined the defendants from enforcing the judgment or proceeding for the enforcement of the execution.

To each of the above rulings the wife, in a direct bill of exceptions, excepted in so far as such rulings were adverse to her. Other facts will be stated in the opinion.

A. C. Latimer, Atlanta, Edward L. Savell, Atlanta, for plaintiff in error.

Winfield P. Jones, Atlanta, F. L. Breen, Atlanta, for defendant in error.

ATKINSON, Presiding Justice (after stating the foregoing facts).

1. The husband made a motion in the Supreme Court to dismiss the writ of error on the grounds: (1) the assignment of error in the bill of exceptions upon the judgment of the trial court, sustaining the plaintiff's demurrers to and striking the defendant's amended answer and cross-action, being one on an interlocutory order, and neither the bill of exceptions nor the record showing that said antecedent ruling necessarily controlled the final judgment, cannot in itself nor under said general exception to the final judgment as contrary to law be considered by this court; (2) it appearing from the record that the trial judge, sitting without a jury, passed upon all questions of law and fact, and that there was no brief of evidence incorporated in or attached as an approved exhibit thereto nor sent up as part of the record, the exception to the final judgment as being contrary to law, but without specifically stating any ground of error, is too general, uncertain, and indefinite to be considered by this court; (3) it appearing from the bill of exceptions that, although various defendants were affected by the final judgment, only the plaintiff was made a defendant in error, the bill of exceptions is fatally defective for want of necessary parties defendant in error.

The Code, § 6-1307, declares: 'The Supreme Court or the Court of Appeals shall not dismiss any case for any want of technical conformity to the statutes or rules regulating the practice in carrying cases to said courts, where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein.' This court has held that a final judgment is reviewable by general exception in so far as it is affected by antecedent rulings which are properly excepted to in the same writ of error. Lyndon v. Georgia R. & Electric Co., 129 Ga. 353(3), 58 S.E. 1047; Rabhan v. Rabhan, 185 Ga. 355(1), 195 S.E. 193; Cheatham v. Palmer, 191 Ga. 617(1b), 13 S.E.2d 674; Georgia Veneer &c. Co. v. Florida National Bank, 198 Ga. 591, 32 S.E.2d 465. After a discussion of the above rule in Carpenter v. State, 194 Ga. 395, 400, 21 S.E.2d 643, 646, it was said: 'The true rule is, that, although the final judgment is excepted to on the general ground that it is contrary to law, if an examination of the record discloses that antecedent rulings duly excepted to in the bill of exceptions entered into and affected the final judgment, the bill of exceptions is sufficient to present to this court for decision the antecedent rulings excepted to and the final judgment in so far as it is affected by such antecedent rulings.'

The present bill of exceptions, which was tendered to the trial judge on December 30, 1949, states that the court entered a judgment on December 12, 1949, sustaining stated demurrers to the wife's amendment, and striking her amendment and cross-action, to which ruling she excepted on the general ground that it was contrary to law. On the next day, the trial judge passed a final order granting an injunction against the various defendants and terminating the litigation without giving the wife an opportunity to amend and be heard on the merits of her cross-petition, to which ruling she excepted on the general ground that it was contrary to law. The bill of exceptions also contains the statement that the rulings complained of are contrary to law, in that the amendment and cross-petition set forth a valid cause of action against the husband; and that the ruling striking the amendment and cross-petition deprived the wife from asserting a valid right against the husband, who is a nonresident of this State; and that unless the merits of her cross-petition are heard she will have no adequate remedy.

An examination of the present record discloses that the antecedent ruling striking the wife's amended answer in the nature of a cross-petition, which ruling was duly excepted to in the bill of exceptions, entered into and affected the final judgment. Applying the above principles, the bill of exceptions is sufficient to present to this court for decision the antecedent ruling excepted to and the final judgment in so far as it is affected by such antecedent ruling.

(a) In Ruffin v. Paris, 75 Ga. 653(1), it was held: 'Where the judgment of the superior court was adverse to the defendants, one of them could except and bring the case to this court without joining the other plaintiffs in error; and a failure to do so will not work a dismissal of the writ of error.' See Jones v. Hurst, 91 Ga. 338(1), 17 S.E. 635; Turner v. Newell, 129 Ga. 89(1), 58 S.E. 657; Durrence v. Cowart, 160 Ga. 671(2), 129 S.E. 26.

Furthermore, the Code, § 6-1202, provides that no party shall be considered as interested in the litigation in the reviewing court who will not be affected by the judgment to be rendered in that particular case. The record shows that the defendants mentioned in the bill of exceptions, but not made defendants in error, were the Sheriff of Fulton County and the Sheriff of De Kalb County. These defendants filed no pleadings, and under the facts of the instant case could not be affected in any way by the judgment to be rendered upon the wife's cross-petition.

(b) Accordingly, there is no merit in the motion to dismiss the bill of exceptions.

2. The wife's amended answer in the nature of a cross-petition seeks in two counts to set up an alleged agreement for the payment of alimony for minor children, the only difference between the counts being that in count one the agreement is alleged to be oral, while in count two it is alleged to be in writing.

To the allegation in the cross-petition that the husband is a nonresident of Georgia, and a resident of Ohio, the husband demurred on the ground that the allegation is immaterial, irrelevant, and incompetent to bind the husband. Code, § 37-105, declares: 'Equity seeks always...