Matuszczak v. Kelly
| Decision Date | 04 March 1975 |
| Docket Number | No. 29653,29653 |
| Citation | 213 S.E.2d 875,233 Ga. 914 |
| Parties | Stanley R. MATUSZCZAK v. Dorothy B. KELLY. |
| Court | Georgia Supreme Court |
Victoria D. Little, Decatur, for appellant.
James W. Garner, Harrison & Garner, Lawrenceville, for appellee.
Syllabus Opinion by the Court
Dorothy B. Kelly filed a complaint in the Superior Court of Gwinnett County in which she sought to domesticate a Michigan divorce decree, as amended by the Michigan court, against her former husband then a resident of Gwinnett County. The complaint also sought a ne exeat bond. On June 28, 1974 the former husband was personally served with such complaint, the rule nisi signed by the court requiring him to show cause on August 16, 1974 as to why such ne exeat bond should not be required as well as the usual process and summons requiring an answer to the complaint within 30 days after such service.
No answer was filed within the 30-day period nor within the 15-day period following when such default could be opened as a matter of right under the provision of Section 55 of the Civil Practice Act ().
On the date set for the hearing on the rule nisi, counsel for the plaintiff moved for a default judgment, and an order was entered which allowed defense counsel time to file a brief in support of defense counsel's contention that a final order should not be granted. Prior to the expiration of the period allowed for such brief, counsel for the defendant filed a petition to open default and a proposed answer to the complaint as well as a motion to dismiss the plaintiff's complaint. Thereafter, the trial court entered a judgment expressly declaring the action in default disallowing the defendant's answer and denying the petition to open such default. The judgment further incorporated the Michigan decrees in the case by reference and made such judgment the judgment of the Gwinnett County Superior Court as if they had originally been made by such court. The plaintiff and defendant were ordered to adhere strictly to the terms of each of said orders. A judgment for past-due child support as alleged in the complaint was included. The appeal is from this judgment.
1. At no time while the case was pending in the superior court was any relief granted under the prayers of the complaint seeking to require a ne exeat bond, the plaintiff in the trial court did not file any cross appeal and no enumeration of error contained in the appeal relates to the pleadings seeking such bond.
"The test of a case as made by writ of error to the Supreme Court as to whether it in one in equity, and hence reviewable by the Supreme Court, Const. art. 6, § 2, par. 4 (Code Ann. § 2-3704), is not what it might have been at any given time during its pendency in the trial court but what remained in it and is brought here for review. Matters eliminated either by the parties or by order of the trial court constitute no part of the case in the Supreme Court. Cochran v. Stephens, 155 Ga. 134, 116 S.E. 303; Coats v. Casey, 162 Ga. 236, 133 S.E. 237; Benton v. Benton, 164 Ga. 541, 543, 139 S.E. 68; Jones v. Pierce, 192 Ga. 217, 219, 14 S.E.2d 739; Gilbert Hotel No. 22 v. Black, 192 Ga. 641, 16 S.E.2d 435; Overstreet v. Schulman, 203 Ga. 284, 46 S.E.2d 344; Anagnostis v. Alexandrou, 203 Ga. 752, 48 S.E.2d 521.' Douglas-Guardian Warehouse Corp. v. Todd, 212 Ga. 791, 96 S.E.2d 275.' Benton v. State Hwy. Dept., 220 Ga. 674, 676, 141 S.E.2d 396, 398. See also Taylor v. Murray, 215 Ga. 628, 112 S.E.2d 583; Johnson v. Mutual Federal Savings...
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Gray v. Loper
...in this state and the enumerations of error in no wise involve the contempt feature. See in this connection Matuszczak v. Kelly, 233 Ga. 914, 915(2), 213 S.E.2d 875; Parker v. Parker, 233 Ga. 434, 211 S.E.2d 729, supra, and Guest v. Guest, 146 Ga.App. 512(1), 246 S.E.2d 503, Judgment affirm......
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