Moody v. Moody

• Decision Date: 12 November 1942
• Docket Number: 14360.
• Parties: MOODY v. MOODY.
• Court: Georgia Supreme Court

22 S.E.2d 836

195 Ga. 13

MOODY v. MOODY.

No. 14360.

Supreme Court of Georgia

November 12, 1942

Hamilton Kimzey, of Cornelia, Frank Jackson Adams, Jr., of Atlanta, Herbert B. Kimzey, of Cornelia, and Irwin R. Kimzey of Clarkesville, for plaintiff in error.

A H. Henderson, of Cleveland, and J. E. Frankum, of Clarkesville, for defendant in error.

Syllabus Opinion by the Court.

JENKINS Justice.

1. While it is the well-settled rule that this court 'will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involved questions of evidence or upon a ground which involved purely questions of law, unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case' (Weinkle v. Bruns-wick & Western R. Co., 107 Ga. 367, 368, 33 S.E 471; Code, § 6-1608; Sparks v. Noyes, 64 Ga. 438; Merriam v. City of Atlanta, 61 Ga. 222; Macon Consolidated Street R. Co. v. Jones, 116 Ga. 351, 42 S.E. 468; Griffith v. Sellers, 170 Ga. 577, 153 S.E. 359; Glenn v. Tankersley, 187 Ga. 129, 200 S.E. 709), it has nevertheless been held with equal uniformity that if the evidence does demand the verdict rendered, the first grant of a new trial will be reversed. Brenner v. Wright, 187 Ga. 770, 772, and cit., 2 S.E.2d 410.

2. (a) In a suit for divorce, not only must the plaintiff have been 'a bona fide resident of the State 12 months before the filing of the application for divorce,' or a resident of a 'United States Army Post or Military Reservation within the State,' adjacent to the county where the suit is brought, 'for one year next preceding the filing of the petition' (Code,§ 30-107, as amended by the act of 1939, Ga.L. p. 203), but under the Constitution, art. 6, § 16, par. 1 (Code, § 2-4301), suit must be brought 'in the county where the defendant resides, if a resident of this State', or, 'if the defendant be not a resident of this State, then in the county in which the plaintiff resides.' These provisions of the Constitution are mandatory and exhaustive, and have no qualification which authorizes jurisdiction to be conferred by consent otherwise. Accordingly, where both parties are residents of this State, a divorce is invalid unless the suit was brought in the county where the defendant resided. Johnson v. Johnson, 188 Ga. 800, 801, 4 S.E.2d 807; Jones v. Jones, 181 Ga. 747(4), 752, 184 S.E. 271; Odum v. Odum, 132 Ga. 437, 439, 64 S.E. 470.

(b) The essential allegations in a petition for divorce, including jurisdiction, must be established before both juries; and the burden of proving the jurisdictional requirements is on the plaintiff. Code, § 30-113; Bellamy v. Bellamy, 187 Ga. 56, 58, 199 S.E. 745; Dicks v. Dicks, 177 Ga. 379, 382, 170 S.E. 245.

3. In the instant petition by a wife, besides asking temporary and permanent alimony, she prayed for only a total divorce on the grounds of cruel treatment and habitual intoxication, as to...