Irby v. Irby, (No. 6600.)

• Decision Date: 19 January 1929
• Docket Number: (No. 6600.)
• Parties: IRBY. v. IRBY.
• Court: Georgia Supreme Court

167 Ga. 708

146 S.E. 489

IRBY.

v.IRBY.

(No. 6600.)

Supreme Court of Georgia.

Jan. 19, 1929.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by Mrs. J. F. Irby against J. F. Irby. The case was stricken from the docket, and defendant brings error. On motion to dismiss bill of exceptions. Writ of error dismissed.

H. W. McLarty, of Atlanta, for plaintiff in error.

Aldine & H. W. Chambers, of Atlanta, for defendant in error.

BECK, P. J. Mrs. J. F. Irby filed suit for temporary and permanent alimony. Upon the hearing of the application for temporary alimony, the judge of the superior court awarded a stated sum as temporary alimony. The defendant made certain payments as ordered, and failed to make other payments as they fell due. The wife filed contempt proceedings against the husband, for failure and refusal to pay alimony as ordered. Upon the hearing of the contempt proceedings, the defendant was adjudged in contempt of court, but a reduction was made in the amount allowed as temporary alimony; and it was further provided in the order of the court that the. defendant might purge himself of contempt by the payment, within three days, of a stated sum on the amounts of alimony accrued. This order was not complied with, and the defendant failed to purge himself or contempt by compliance with the order or by making any further showing as to his inability to pay. The suit for permanent and temporary alimony came on for trial and was on the trial calendar, and counsel urged a final determination of the issue in the case before the court and jury. The plaintiff filed a motion to "strike the case from the trial calendar and deny the defendant the right to be heard, on the ground that he was in contempt of court, and that said contempt worked a forfeiture of all his rights until he purged himself." The court sustained this motion, and the case was stricken from the calendar and the docket "until the defendant purges himself of contempt." The defendant took, a bill of exceptions in which error is assigned upon the order last referred to, on the ground that it violated alleged rights of the defendant under a specified paragraph of the Constitution of the state. A motion was made in this court to dismiss the bill of exceptions, upon the ground that the judgment excepted to was not such a final judgment as could be brought under review in this court by a direct bill of exceptions.

The ground of the motion to dismiss the bill of exceptions based upon the want of jurisdiction in this court to entertain the same is sustained. Manifestly, the judgment excepted to is not a final judgment; it is not a final disposition of the...