Glenn v. Hill

• Decision Date: 31 July 1873
• Parties: JOSEPH GLENN, plaintiff in error. v. JOHN HILL, defendant in error.
• Court: Georgia Supreme Court

50 Ga. 94

JOSEPH GLENN, plaintiff in error. v. JOHN HILL, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Divorce. Alimony. Altorney's fees. Before Judge McCutchen. Whitfield Superior Court. April Term, 1873.

Glenn brought suit against Hill, in the Justice Court for the eight hundred and seventy-second district, on an account for $50 00, for professional services as an attorney at law, alleged to have been rendered to Fannie Hill, the wife of the defendant, in the case of said Fannie Hill against the defendant, the same being an action for a divorce, still pending in Whitfield Superior Court. The presiding magistrate dismissed the suit for want of jurisdiction in his Court. The plaintiff carried the ease, by writ of certiorari, to the Superior Court, where the judgment of the magistrate was affirmed.

To this ruling the plaintiff excepted Jesse A. Glenn, for plaintiff in error.

Johnson & McCamy; Shumate & Williamson, for defendant.

*TRIPPE, Judge.

Pending an action for divorce, temporary alimony for the wife, including expenses of litigation, may be granted by the Judge of the Superior Court: New Code, sec. 1737. In fixing the amount of alimony, the Judge may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in his discretion may refuse it altogether: Code, sec. 1740. Thus, temporary alimony, and, of course, the counsel fees for the wife, are not, as a matter of absolute right, to be granted. They are, by law, in the discretion of the Judge of the Superior Court. Whilst the libel is pending, they are incidents to it, and can only be determined by one tribunal. If an action could be maintained by the wife\'s counsel against the husband for their compensation in the Justice\'s Court, whilst the suit is pending for divorce, a singular anomaly would be presented. The Superior Court alone has jurisdiction of divorce cases. The Judge of that Court may grant temporary alimony. This, as stated, covers the question of counsel fees. The Judge, in determining whether he will allow any, may make inquiry into certain facts and circumstances touching the separation and necessity for the alimony, and also, by section 1738, into other matters. If there be rules for the Judge of the Superior Court, they should be observed by any tribunal who may hear the question. They would be obligatory on, or authority for, the Justice of the Peace. The law would not furnish him one rule of action and...