Hansberger v. Hansberger

• Citation: 185 S.E. 810,182 Ga. 495
• Docket Number: 11173.
• Decision Date: 15 May 1936
• Parties: HANSBERGER v. HANSBERGER.
• Court: Supreme Court of Georgia

185 S.E. 810

182 Ga. 495

HANSBERGER v. HANSBERGER.

No. 11173.

Supreme Court of Georgia

May 15, 1936

Syllabus by the Court.

1. A suit by a minor by her mother as next friend, for recovery of a sum of money to be paid each month by the father for the education, maintenance, and support of the minor, is in the nature of a suit for alimony, and such suit cannot be maintained.

2. The court did not err in refusing to allow the collateral attack on the divorce decree, which, as the plaintiff alleged, was obtained by collusion and fraud.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Petition by June Hansberger, by next friend, against B. N. Hansberger. To review a judgment dismissing the petition on demurrer plaintiff brings error.

Affirmed.

Geo. & John L. Westmoreland, of Atlanta, for plaintiff in error.

Chas G. Bruce, of Atlanta, for defendant in error.

BECK Presiding Justice.

This suit was brought by a minor daughter, by her mother as next friend, against the minor's father for maintenance support, and education. In the petition it is alleged that plaintiff's parents are divorced; that in the divorce suit, which was brought by the father against the plaintiff's mother, the father alleged that he had been and was paying $25 a week for the maintenance, education, and support of this plaintiff, his daughter. In the present suit it is alleged that defendant is not supporting the plaintiff who is now living with her mother; that no provision was made by order of the court for this plaintiff in the divorce suit, and she is without means of support; that the defendant is earning $160 per month; and that the sum of $75 per month is necessary for plaintiff's support, maintenance, and education. She prays "that a rule nisi issue, requiring the defendant to show cause on a day certain, if any he has, why the plaintiff should not be furnished support by him; and prays that the defendant be required to pay to the plaintiff a sum sufficient to maintain, support, and educate her," etc. The defendant filed his demurrer on the grounds that the petition sets forth no cause of action; that there is no provision of law or equity authorizing it; that it is a suit by a divorced woman against her former husband, to recover alimony, or to recover monthly installments of money in the nature of alimony, for which there is no provision in the law of this state. The court sustained the demurrer and dismissed the petition. Afterward the court set aside the order of dismissal, and allowed the plaintiff to amend her petition, subject to demurrer. By amendment the petitioner struck the allegation that the defendant and her mother were divorced, and attacked the divorce proceeding on the ground of collusion between the parties. She alleged that in the divorce suit the mother filed no cross-action, and there was no provision in that case as to the custody of this plaintiff or for her support. She renews her prayer for maintenance and support. The demurrer was renewed. The court sustained it, and the plaintiff excepted.

In the divorce suit the father alleged that he was paying $25 a week for the education, maintenance, and support of the minor daughter. It is provided in Code 1933, § 30-206, that the judge in suits for divorce may decree a sum sufficient for the support of the family of a husband, dependent upon him and who have a legal claim upon his support, as well as for the support of his wife, etc. Section 30-206. Also that the jury on final verdict for divorce shall provide a sufficient sum for the maintenance of the children, and the husband shall not be liable to third persons for necessaries furnished the children embraced in the verdict. Section 30-207. There is no provision at law for bringing the suit like the present; for in its very essence is it in the nature of a suit for alimony, and a minor child cannot bring such suit against the father. Sikes v. Sikes, 158 Ga. 406, 123 S.E. 694. Neither can a suit in equity be maintained by a next friend of the minor against the father for maintenance, education, and support of the minor. Hooten v. Hooten, 168 Ga. 86, 147 S.E. 373,...