Mote v. Mote

• Decision Date: 07 May 1958
• Docket Number: No. 20025,20025
• Citation: 103 S.E.2d 565,214 Ga. 134
• Parties: Claude C. MOTE v. Mary Love MOTE.
• Court: Georgia Supreme Court

Page 565

103 S.E.2d 565

214 Ga. 134

Claude C. MOTE v.Mary Love MOTE.

No. 20025.

Supreme Court of Georgia.

May 7, 1958.

Frank Grizzard, Norman H. Fudge, Atlanta, Marvin D. Pierce, Jr., Winder, for plaintiff in error.

Mims Wilkinson, Jr., Atlanta, C. O. Baker, Athens, for defendant in error.

Syllabus Opinion by the Court

MOBLEY, Justice.

An order or judgment that merely declares the rights of the parties, without any express command or prohibition, is not one which may be the basis of contempt proceedings.Brown v. Smith, 150 Ga. 111, 102 S.E. 813;Hammock v. Hammock, 209 Ga. 751, 76 S.E.2d 15;12 Am.Jur. 406, § 24.Accordingly, where a petition filed by the defendant in error seeking an attachment for contempt against the plaintiff in error (the father), alleges that the parties were divorced in February, 1956; that a decree of custody as to their minor child was entered, which provided in part as follows: 'The permanent custody of Carolyn Elizabeth Mote is awarded to the plaintiff, Mary Love Mote.The defendant, Claude C. Mote, shall have the right of visitation two (2) weekends each month.The defendant is to give reasonable notice of such visits.The defendant is further to have said child visit him four (4) weeks each year during the summer vacation period'; that on December 27, 1957, the plaintiff permitted the child to visit its father; and that the defendantfather failed and refused to permit the child to return to her--such petition failed to set forth a cause of action for contempt of court, and the trial judge erred in overruling the motion to dismiss and the general demurrer, both of which were based on the ground that the petition failed to allege that the defendant had violated any order or command of the court, and in holding the plaintiff in error to be in contempt of court.Counsel for the defendant in error requests this court to distinguish the Browncase, supra, from the instant case and to overrule Hammock v. Hammock, supra.Neither of these cases was concurred in by all the Justices.This being true this court is not bound to follow those decisions (Walton v. Benton, 191 Ga. 548, 13 S.E.2d 185;Gormley v. Walton, 180 Ga. 660, 180 S.E. 220); and there would be no necessity to overrule them if we disapproved the rulings there made.However, we are of the opinion that the rulings made in each of those cases are sound and should be followed by this court.We do not agree with the contention of counsel for the defendant in...