Powell v. Powell
| Decision Date | 08 May 1950 |
| Docket Number | No. 17055,17055 |
| Parties | POWELL v. POWELL. |
| Court | Georgia Supreme Court |
This was a proceeding to set aside a divorce judgment. The motion to set aside alleged the following: The wife, a resident of DeKalb County, filed a suit against her husband in Fulton Superior Court on February 24, 1948, for divorce, temporary and permanent alimony, custody of a minor child, and attorney's fees. On February 28, 1948, the husband filed an answer and cross-petition, and at the same time filed a plea to the jurisdiction, and alleged that he was a resident of DeKalb County and only the superior court of that county had jurisdiction. It was alleged that the 'said cause' was heard by a judge of Fulton Superior Court, who took it under advisement, but before a decision was reached the parties resumed cohabitation at their residence in DeKalb County and lived together until about September 30, 1949. On October 6, 1949, the wife filed another suit for divorce temporary and permanent alimony, custody of the minor child, and attorney's fees, in DeKalb Superior Court, upon which a rule nisi was issued. On the same day this suit was filed the wife dismissed her pending suit in Fulton County. The DeKalb suit and rule nisi were served personally on the husband on October 7, 1949, and the rule nisi directed him to show cause before the Judge of DeKalb Superior Court on October 18, 1949, why the prayers of the petitioner should not be granted. On the morning of the day the rule nisi was set for a hearing on the DeKalb divorce suit, the husband appeared in Fulton Superior Court, without any notice to the wife or her attorney, dismissed his pending plea to the jurisdiction, filed an amendment to his cross-petition, and obtained a judgment granting a divorce and custody of the minor child.
On November 10, 1949--which was within 30 days from the date of the judgment--the wife filed the foregoing motion to set aside the judgment. At a hearing thereon on November 22, 1949, the husband moved to dismiss the motion as failing to state sufficient grounds for setting aside the judgment. On December 1, 1949, the wife filed an amendment to her motion, asserting: that the original divorce case was not on the trial calendar, did not so appear in the Fulton County Daily Report, and that it was substituted for another case on the trial calendar; that she had no knowledge that the divorce case had been amended or that the plea to the jurisdiction had been dismissed and a decree obtained until it was presented at the hearing before the Judge of DeKalb Superior Court on the rule nisi issued in her suit for divorce, which was the afternoon of the same day the decree was granted in Fulton Superior Court.
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Moseley v. Moseley, 20031
...for the modification or setting aside of the verdict and judgment, as was done on July 5, 1955, and, as was held in Powell v. Powell, 207 Ga. 1, 59 S.E.2d 718, a petition to set aside judgment, filed within 30 days, may be 2. The bill of exceptions recites that at the final hearing on the p......
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