Gates v. Gates
| Decision Date | 10 November 1943 |
| Docket Number | 14650. |
| Citation | 28 S.E.2d 108,197 Ga. 11 |
| Parties | GATES v. GATES. |
| Court | Georgia Supreme Court |
Rehearing Denied Dec. 2, 1943.
Syllabus by the Court.
1. The defendant's motion to dismiss the proceeding instituted against him, on the ground that he was a non-resident and that no service by publication had been made on him as required by law, was without merit, as the record shows such perfected service had been made.
2. Under the provisions of the Federal Soldiers' and Sailors' Civil Relief Act, 50 U.S. C.A.Appendix, § 521, a person in the military service is entitled as a matter of law to a stay of a proceeding against him in any case to which that statute is applicable upon his bare application stating that he is at the time in the military service, and where nothing else appears as evidence on the question of impairment of his ability to defend the action; but where, as in the present case, a verified application for a stay was made, alleging only conclusions, and not specific facts, as to impairment of ability to defend by reason of military service, the judge, construing the defendant's evidence most strongly against him, was authorized to find, from the absence of such specific facts, that they did not exist or would have been alleged, and in his discretion to deny a stay of the proceeding.
(a) The court was authorized to refuse a stay, for the further reason that in the proceeding against the defendant, to set aside a decree of divorce obtained by him in the same court against the petitioner, it was shown on the face of the record that the decree was void because of lack of jurisdiction in the court rendering the same, and there being no possible defense by the defendant to the action to set aside the void decree, his ability to defend could not be said to be materially affected by reason of his military service.
(b) Nor would the petitioner's amendment seeking permanent and temporary alimony, together with attorney's fees as an incident to her petition to set aside a void decree of divorce obtained in the same court by her husband render erroneous the judgment refusing to stay the proceeding, where, as shown by the record, the husband had obtained such decree during his military service, and thus imposed upon her the absolute necessity of assuming the burden of setting aside such decree, and subjected her to an expense chargeable under the law to the husband.
3. The record showing that the decree of divorce obtained by the defendant was void for lack of jurisdiction in the court rendering it, the petitioner was still the lawful wife of the husband, and entitled to temporary alimony and attorney's fees as sought in her amended petition, and the discretion of the court in allowing the same will not be disturbed.
Statement of facts by DUCKWORTH, Justice:
On November 8, 1941, W. B. Gates, a colonel in the United States Army, stationed at Fort Benning, Georgia, filed in Harris superior court an action for divorce against his wife, Mrs Constance K. Gates, alleging acts of cruel treatment, that she resided at Carmel, California, her last known address being P. O. Box 2342, that he had been a resident of the State of Georgia for more than twelve months, and that his location, Fort Benning, was contiguous to Harris County. Two verdicts of divorce were rendered in his favor, one on January 12, 1942, and the other on July 13, 1942, and a proper decree was entered by the court. On September 19, 1942, Mrs. Gates filed a petition in equity in Harris superior court, seeking to set aside the two verdicts and the decree, her petition alleging fraud as follows: That the defendant in the present suit failed to give her last known street address to the clerk of Harris superior court and she did not receive notice by publication, by which notice was purported to have been given her of the divorce action, and she did not receive a copy of the newspaper containing notice, and that in fact she resided at 1045 Washington Boulevard, Oak Park, Illinois, which address was well known to the husband; that she conversed with him and corresponded with him and visited him during the pendency of his divorce action in Harris County, but that at no time did he acquaint her with the fact that such action was pending, and at all times fraudulently concealed from her the fact that it was pending, and she was without knowledge of the same until after the final verdict was rendered, when he advised her that he was divorced from her. She alleged that though he alleged that he was stationed at Fort Benning, Georgia, at a post contiguous to Harris County, Harris County does not touch the Fort Benning reservation at any place; and that as he did not allege that he was a resident of Harris County, the court of that county had no jurisdiction for purposes of divorce. She denied his allegations of cruel treatment by her and set up a defense to his divorce action. Service was obtained by serving his attorneys in the original divorce action.
On November 6, 1942, Mrs. Gates amended her petition by alleging that W. B. Gates was then residing at Morris Field, North Carolina, and prayed for service by publication. Service was effected by publication before the appearance term.
In January, 1943, and at the appearance term, counsel for Gates moved to dismiss the proceeding, on the grounds that there was no service of Mrs. Gates' petition by publication, and that the service effected on Gates' counsel, who were not parties to the action, was not sufficient. It does not appear from the record that the plea was verified either by Gates or his counsel, and his legal residence was not alleged.
At the appearance term counsel for Gates, in response to the petition of Mrs. Gates, filed a properly verified answer by Gates, and set up that he was Colonel in the United States army air force, and was at the time stationed at Morris Field, Charlotte, North Carolina, and asked that all proceedings be stayed, under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C.A.Appendix, § 501 et seq., until such time as he could make a proper defense.
Mrs. Gates filed another amendment, praying for temporary and permanent alimony and attorneys' fees. A rule nisi was issued by the court and was served on counsel for Gates, requiring Gates to show cause on May 8, 1943, why the prayers of Mrs. Gates should not be granted.
On May 8, 1943, after hearing arguments of counsel for both parties, the court entered an order dismissing the motion to dismiss the proceeding, and refusing to stay the proceedings. In the order it was recited that the attorneys of record for Gates 'announced to the court that in response to the rule nisi issued in the case they were present, in the office of the judge of the superior court of Chattahoochee circuit, at the court-house in Columbus, Georgia, the same being the time and place fixed by the rule nisi in the case, for the purpose of disposing of all motions pending before the court, including plea of lack of jurisdiction and lack of service and motion to stay proceedings under soldiers' and sailors' civil relief act, filed by the defendant, and upon the statement of counsel for defendant that he waived proof as to service by publication and waived the affidavit of the clerk and the order of the judge perfecting service, and after introduction of evidence and arguments of law,' the court ruled as stated above.
The court also entered the following order on the application of Mrs. Gates for alimony: 'In response to the rule nisi issued by the court in said case, * * * and after the announcement of counsel for the above stated parties * * * that they were ready to proceed with the hearing as to said temporary alimony, and after presentation of law, arguments of counsel and the introduction of evidence in said matter, it is ordered by the court' that alimony and counsel fees be paid by Gates as set out in the order.
The exceptions are to the dismissal of the motion to dismiss the proceeding and denying a stay of the proceedings;...
To continue reading
Request your trial
-
Phillips v. Phillips
...divorce court is alleged to have been based upon the fraudulent representations of a party or both parties to the divorce (Gates v. Gates, 197 Ga. 11, 28 S.E.2d 108, and Jones v. Jones, 181 Ga. 747, 184 S.E. 271). Drake v. Drake, 187 Ga. 423, 1 S.E.2d 573, involved an attempt to impeach the......
-
Millholland v. Oglesby
...judgment on the collateral matter of stay and is appealable. See City of Cedartown v. Pickett, 194 Ga. 508, 22 S.E.2d 318; Gates v. Gates, 197 Ga. 11, 28 S.E.2d 108; Howard v. Howard, 203 Ga. 782, 48 S.E.2d 451; Parker v. Parker, 207 Ga. 588, 63 S.E.2d 366; Hartsfield Co., Inc. v. Whitfield......
-
Esco v. Jackson
...his ability to conduct his defense was not materially affected by reason of his military service. In the seminal case of Gates v. Gates, 197 Ga. 11(2), 28 S.E.2d 108, the court held that the Act places no burden upon anyone to produce such evidence; the judge has full power to make such inq......
-
Gherardi de Parata v. Gheradri de Parata
...499 (1947); Barish v. Barish, 190 Iowa 493, 180 N.W. 724 (1920). 6. Torme v. Torme, 251 Ma. 521, 38 So.2d 497 (1949); Gates v. Gates, 197 Ga. 11, 28 S.E.2d 108 (1943); Moran v. Moran, 281 Ky. 739, 137 S.W.2d 418 (1940). Cf., Littig v. Littig, 229 Wis. 430, 282 N.W. 547 7. 164 N.Y. 4, 58 N.E......