Jones v. Jones, 27910
| Decision Date | 02 July 1973 |
| Docket Number | No. 27910,27910 |
| Parties | Dorothy JONES v. David C. JONES. |
| Court | Georgia Supreme Court |
Charles H. Hyatt, Robert J. NeSmitth, Decatur, Lee Hutcheson, Jonesboro, for appellant.
Albert B. Wallace, Jonesboro, for appellee.
Syllabus Opinion by the Court
Dorothy Jones filed a complaint for divorce in Clayton Superior Court on August 5, 1971, against David C. Jones, and appeals an order of November 20, 1972, certified for direct appeal, overruling her amended motion to dismiss an amendment to the respondent's answer, which he filed on August 29, 1972. The amendment is in the nature of a counterclaim or cross bill, asserting conduct of the petitioner as grounds for the award of a total divorce.
In her original motion Mrs. Jones asserted that at the time the respondent filed his amendment her suit for divorce was no longer pending in that she had filed a voluntary dismissal on November 6, 1971. The record is silent as to service or notice to the respondent of this filing at the time he filed his amendment to his answer. In the amendment to her motion she asserted additionally that a divorce suit between the parties was still pending in DeKalb Superior Court, based on a complaint which she filed on September 26, 1968.
The certified copy of the proceedings filed in DeKalb Superior Court as contained in the record in the present appeal is silent as to any final disposition of the divorce suit in that court.
The wife's petition in Clayton Superior Court asserts the requisite venue and jurisdictional facts to support a suit for divorce in Clayton Superior Court, and that the parties lived together as man and wife until separation on July 31, 1971. These facts the husband admits. Held:
1. Having considered all of the circumstances as revealed in the present appeal, including the record from DeKalb Superior Court as contained therein, we conclude that the parties by their own conduct have mooted any right of either to continue his or her claim for a divorce under the pleadings on file in DeKalb Superior Court. See Code § 30-109 regarding subsequent cohabitation. Accordingly, we proceed to dispose of the present appeal on the premise that the case in DeKalb Superior Court is moot, and is therefore not to be treated as a pending suit.
2. Generally, an action may be dismissed by the plaintiff without order of court by filing a written notice of dismissal at any time before verdict. If a counterclaim has been pleaded by a defendant prior to service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication. CPA § 41(a) (Code Ann. § 81A-141(a)). Compare this with Federal Rule 41 as published in Ga. Code Ann. Book 23A, Appendix B, p. 227.
This record shows that while plaintiff filed a voluntary dismissal, no service of such dismissal was made upon the defendant or his counsel. Generally, CPA § 5(a) (Code Ann. § 81A-105), like Federal Rule...
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