Mosely v. Mosely

• Decision Date: 14 December 1935
• Docket Number: 10800.
• Citation: 182 S.E. 849,181 Ga. 543
• Parties: MOSELY v. MOSELY.
• Court: Georgia Supreme Court

182 S.E. 849

181 Ga. 543

MOSELY v. MOSELY.

No. 10800.

Supreme Court of Georgia

December 14, 1935

Syllabus by Editorial Staff.

Subsequent voluntary cohabitation will render void judgment for temporary alimony and attorneys' fees for representing wife in alimony proceedings (Code 1933, § 30-217).

Suit for alimony and attorneys' fees based on husband's abandonment of wife after renewal of cohabitation held not subject to abatement because of pendency of prior suit for alimony based on wife's separation from husband, before renewal of cohabitation, on account of cruel treatment (Code 1933, §§ 3-601, 30-217).

Error from Superior Court, Bibb County; W. A. McClellan, Judge.

Suit by R. L. Mosely against Albert Mosely. To review a judgment overruling defendant's plea in abatement and granting plaintiff temporary alimony and attorney's fees defendant brings error.

Affirmed.

Geo. M Nottingham and A. E. Gilmore, Jr., both of Macon, for plaintiff in error.

R Habernicht Casson and Harry E. Nottingham, both of Macon, for defendant in error.

Syllabus OPINION.

ATKINSON Justice.

1. Subsequent voluntary cohabitation will render void a judgment for temporary alimony and attorney's fees for representing the wife in the alimony proceedings. Code 1933, § 30-217; Weeks v. Weeks, 160 Ga. 369, 127 S.E. 772.

2. Where a suit for alimony was based on separation wherein the wife separated from the husband on account of cruel treatment by the husband, the cause of action was different from the cause of action in a subsequent suit by the wife for alimony and attorneys' fees, based on separation wherein the husband, after the renewed cohabitation above mentioned, abandoned the wife and went off to live with another woman. The case differs from Cox v. Cox, 163 Ga. 93, 135 S.E. 504, in which the same facts were alleged in both cases; in one the facts were alleged to constitute cruel treatment; in the other, the facts were alleged to constitute willful and continued desertion.

3. In the circumstances stated above, pendency of the first suit at the time of institution of the second suit may not, under the Code 1933, § 3-601, be pleaded in abatement of the second suit.

4. At the hearing prior to the appearance term, the judge did not err for any reason assigned, after introduction of evidence in overruling the plea in abatement and in granting temporary alimony and attorney's fees. No point was made that the...