Odum v. Odum
| Decision Date | 16 April 1909 |
| Citation | 132 Ga. 437,64 S.E. 470 |
| Parties | ODUM. v. ODUM. |
| Court | Georgia Supreme Court |
Where a husband brought suit for divorce in a county which was not the county of the residence of his wife, and no service was made before the term of the court to which suit was brought, and after such term, and before the next term, the wife filed an answer, in which she pleaded to the merits, and on the back of the petition signed a writing wherein there was an acknowledgment of due and legal service of the petition and process and a waiver of copies thereof, held, while such application was pending, the wife had the right to file an application for temporary alimony and have a hearing thereon.
[Ed. Note.—For other cases, see Divorce, Cent. Dig. § 593; Dec. Dig. § 202.*]
The court did not abuse its discretion in deciding that the wife was entitled to temporary alimony, and in awarding to her the amount specified in its order.
[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 591, 592; Dec. Dig. § 201.*]
(Syllabus by the Court.)
Error from Superior Court, Wayne County; T. A. Parker, Judge.
Action by Walter Odum against Lula Odum for divorce. From an order granting a temporary alimony, plaintiff brings error. Affirmed.
J. R. Thomas, for plaintiff in error.
L.L. Thomas and Hines & Jordan, for defendant in error.
The plaintiff filed his petition against his wife for a divorce, in Wayne superior court on the 6th day of February, 1908; and process was issued, requiring the defendant to appear at the March term, 1908. No service by the sheriff of this petition and process was made; but on the 16th day of May, 1908, on the back of the petition, the defendant, by her attorney at law, signed an acknowledgment of due and legal service of the petition and process, a waiver of a copy thereof and of all other and further service, and also a waiver of the jurisdiction of the court, and agreed that the succeeding term of Wayne superior court be made the trial term of the case. On the 19th day of May, 1908, the wife filed an answer to the petition, wherein, among other allegations, she averred that the acts of adultery charged against her in the petition were untrue. On the 22d day of August, 1908, the wife filed her petition for temporary alimony and counsel fees, and asked an injunction against the defendant disposing of any of his property. Service of this petition for temporary alimony was acknowledged by the husband, and upon the hearing thereof the court overruled the motion of the husband to dismiss the application on the ground that the wife alleged she was a resident of Tatnall county, Ga., and not a resident of Wayne county, where his suit for divorce was filed, which he alleged was a nullity. He contended that the suit for divorce filed by him was void, and that the proceedings for temporary alimony could not be maintained. This motion the court overruled, and, upon the hearing of the petition for temporary alimony, awarded alimony and attorney's fees to the wife.
The answer and the affidavit of the wife appear to have been made in Tatnall county, and she stated that she waived jurisdiction of Wayne superior court. This latter fact indicates she did not reside in Wayne county, where the husband's suit for divorce was filed. Counsel for both parties in this case seem to proceed on the idea that it is an undeniable fact that the wife resided in Tatnall county at the time of the institution in Wayne county of the suit for a divorce by her husband. If she resided in Tatnall county at the time the suit for divorce was filed, could she, under the facts of this case, maintain an application for temporary alimony? In Civ. Code 1895, § 4981, it is provided: "Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof." After the March term, to which the suit was brought, and before the trial term, the wife acknowledged...
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Roberts v. Roberts
...the husband could sue only in the county of his wife's residence." Haygood, 9 S.E.2d at 838, quoting a headnote in Odum v. Odum, 132 Ga. 437, 439, 64 S.E. 470, 471 (1909). However, the court in Haygood went on to discuss at some length two cases in which void judgments were not permitted to......
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Roberts v. Roberts
...that the husband could sue only in the county of his wife's residence." Haygood, 9 S.E. 2d at 838, quoting a headnote in Odum v. Odum, 132 Ga. 437, 439, 64 S.E. 470, 471. However, the court in Haygood went on to discuss at some length two cases in which void judgments were not permitted to ......
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Harmon v. Harmon, 18019
...672. (b) And a divorce granted by a court having no jurisdiction of the subject matter and of the parties is a nullity. Odum v. Odum, 132 Ga. 437, 439, 64 S.E. 470; Jones v. Jones, 181 Ga. 747(4), 184 S.E. 271; Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 2. In the instant case, while the peti......
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Haygood v. Haygood
...and it was proper for the judge, at any time while the suit was pending to dismiss the same upon his own motion.' In Odum v. Odum, 132 Ga. 437, 439, 64 S.E. 470, 471, was said: 'It is true that in a suit for divorce jurisdiction of the court cannot be waived, so as to permit a suit for divo......