Quigley v. Quigley

Decision Date20 June 1977
Docket NumberNo. 32208,32208
Citation236 S.E.2d 603,239 Ga. 250
PartiesAlbert James QUIGLEY v. Sally White QUIGLEY.
CourtGeorgia Supreme Court

Harrison, Hendon, Glean, Kovacich & Naughton, Michael Anthony Glean, Decatur, for appellant.

Peek & Whaley, William H. Whaley, Atlanta, for appellee.

BOWLES, Justice.

The case is before this court appealing from a judgment of the Superior Court of Fulton County, Georgia, holding the appellant husband in contempt for failure to pay his former wife alimony and child support.

We affirm.

A final decree of divorce was granted to the parties on August 4, 1972, a separation and alimony agreement was made part of the judgment and decree. Upon the appellant's failure to comply with the terms of the decree, the appellee filed a motion for contempt against him on October 4, 1976. An original rule nisi was signed by one of the judges of the Fulton County Superior Court directing the appellant to appear before another judge at 1 o'clock p.m. on the 11th day of November, 1976. Along with that motion and attached thereto was a motion to produce certain documents, also directed to the defendant requiring appearance at 11 o'clock a.m. on November 11, 1976. Appellant's original counsel having withdrawn from the case, appellant was personally served with a copy of the notice to produce and rule nisi on October 5, 1976, as shown by the entry of the sheriff. Appellant did not appear before the court at either 11 o'clock a.m. or 1 o'clock p.m. on November 11, 1976, and the judge heard the matter in his absence. This resulted in a final order holding him in contempt. Appellant did, however, at 9 o'clock a.m. on the 11th day of November, 1976, file with the Clerk of the Superior Court of Fulton County a motion to quash the summons and notice to produce in which he said that the copy of the rule nisi required him to appear before the court on the 11th day of November, 1976 at 1 o'clock in the morning and in which he claimed he did appear at such hour and date. Appellant's motion also recites that the copy of the notice to produce served on him required him to produce documents at 11 o'clock a.m. on the 11th day of November, 1974. Appellant complains that the summons attached was vague, broad and incomplete, with erroneous times and erroneous dates, and subjects appellant to jeopardy as defined by the United States and Georgia Constitutions, and submits the same to the court for the court's consideration without oral argument because "further oral argument might place him in further jeopardy." After filing this motion to quash, appellant did not inquire further from the court about the proper time or date, nor did he appear in support of his motion.

Thus, the original record of the court shows two times for the appellant's appearance on the 11th day of November, 1976, with one reading at 11 o'clock a.m. and the other reading 1 o'clock p.m. We only have the appellant's motion, which he did not pursue, claiming that different hours and dates were entered on the copies served on him. After final judgment was entered holding him in contempt he did not seek to have the same set aside or corrected in any way. He filed his first notice of appeal to this court stating that the transcript of the evidence and proceedings will be submitted to the Supreme Court as a part of the record on appeal. He later amended that appeal by striking the last paragraph regarding the transcript and proceedings. Thus we have no transcript of the evidence and proceedings which can be considered by this court.

1. Appellant's first enumeration of error complains that the trial court erred in failing to grant his motion to quash summons and notice to produce. Without an order of the trial judge ruling either for or against appellant's motion, there is nothing for this court to pass on in that respect.

2. The second enumeration contends that the trial judge erred in hearing the contempt action, as, based upon the merits of the motion to quash summons, he had no jurisdiction. With this we cannot agree. The original rule nisi and the original notice to produce which are on file in the office of the Clerk of the Superior Court show clearly that appellant was required to appear at a definite time, date and place to respond to the motion. The entry of the sheriff's office shows that a true copy of these documents was served upon appellant. If through some clerical error, the copies served upon the appellant varied in time and date from the originals on file with the court, this would be an amendable defect and the clerical error, if any, would not be fatal to the proceeding. Appellant admits that the rule nisi served upon him required him to appear at 1 o'clock a.m. on November 11, 1976. While this is an unusual hour for a court hearing to be held, we know of no legal reason that would prohibit the court from thus sitting. The appellant even claims he appeared at the courthouse at that hour. He also appeared at the courthouse at 9 o'clock a.m. on November 11th, and filed...

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  • Hipple v. Simpson Paper Co., No. A98A1416
    • United States
    • Georgia Court of Appeals
    • September 11, 1998
    ...ruling either for or against [Hipple's] motion, there is nothing for this court to pass on in that respect." Quigley v. Quigley, 239 Ga. 250, 251(1), 236 S.E.2d 603 (1977); Community Ed. Ctr. v. Cohen, 158 Ga.App. 456, 457(2), 280 S.E.2d 839 (1981). We may not address issues on appeal which......

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