Reynolds v. Reynolds, 21295

• Decision Date: 08 September 1961
• Docket Number: No. 21295,21295
• Citation: 217 Ga. 234,123 S.E.2d 115
• Parties: Muriel M. REYNOLDS v. Richard J. REYNOLDS.
• Court: Georgia Supreme Court

Page 115

123 S.E.2d 115

217 Ga. 234

Muriel M. REYNOLDS v. Richard J. REYNOLDS.

No. 21295.

Supreme Court of Georgia.

Sept. 8, 1961.

Rehearing Denied Sept. 28, 1961.

Syllabus by the Court

For the reasons stated in the opinion, the court erred in denying the motion for new trial as amended.

Gambrell, Harlan, Russell, Moye & Richardson, E. Smythe Gambrell, James C. Hill, Robt. R. Richardson, Harold N. Hill, Jr., Floyd E. Siefferman, Jr., Atlanta, Charles C. Stebbins, Jr., Darien, for plaintiff in error.

Troutman, Sams, Schroder & Lockerman, Robt. L. Pennington, Atlanta, Aaron Kravitch, Phyllis Kravitch, Savannah, Joseph T. Grice, Bruce D. Dubberly, Glennville, Richard M. Scarlett, L. Julian Bennet, Brunswick, for defendant in error.

HEAD, Presiding Justice.

The present case began with the filing of a petition for divorce by the husband, with a subsequent response by the wife seeking alimony. The bill of exceptions contains 128 pages. A motion to dismiss certain assignments of error was filed which contains 12 pages, and a brief, in support thereof. The transcript (pleadings, evidence, amended motion for new trial, and charge of the court) covers 2272 pages. The original brief for the defendant (plaintiff in error in this court) contains 121 pages. Briefs of counsel for the plaintiff (defendant in error in this court) contain 483 pages. The reply brief for the defendant contains 110 pages, and her response to the motion to dismiss various assignments of error, 16 pages. The reply brief of counsel for the plaintiff contains 32 pages.

In calling attention to the size of the record in the present case the court does not intend any criticism of counsel for the parties as to the manner in which the case was tried, or the procedure followed in the trial court. It is the duty of this court to deal with the assignments of error, and this we shall do pursuant to the rule requiring that we 'review all judgments, rulings, or orders excepted to which may affect the proceedings below.' Code § 6-701, as amended, Ga.L.1957, pp. 224, 230.

The parties will be referred to in the opinion as they appeared in the trial court.

1. Counsel for the plaintiff filed a motion to dismiss certain assignments of error on the grounds that a substantial amount of questions and answers and parts thereof, immaterial to the assignments of error, was permitted to remain in the transcript of the evidence in violation of Code § 70-305, as amended, Ga.L.1953, Nov.-Dec. Sess., pp. 440, 446; and that the transcript further violates § 70-305, as amended, in that the documentary evidence was not briefed as required by law.

The certificate of the trial judge to the bill of exceptions demonstrates that a bona fide effort was made by counsel for the defendant to eliminate immaterial matter, and that certain evidence was included on the requirement of the judge. Code § 70-305, as amended, Ga.L.1953, Nov.-Dec. Sess., pp. 440, 446, provides for a 'summary of documentary evidence,' Code § 70-301, as amended, Ga.L.1957, pp. 224, 235, authorizes 'copies or a summary of documentary evidence.' The contention that the documentary evidence was not briefed as required is therefore without merit. The motion to dismiss is denied.

The plaintiff filed his petition for divorce on August 20, 1959, charging that the defendant had been 'guilty of cruel and inhuman treatment.' It was alleged that the defendant had been a resident of McIntosh County, but is now temporarily sojourning elsewhere. He prayed that the defendant be temporarily restrained, and permanently enjoined, from visiting his home in McIntosh County and from 'interfering, annoying or in any manner disturbing plaintiff,' On the same date the petition was filed the judge of the superior court entered an order requiring the defendant to show cause on September 4, 1959, why the prayers of the petition should not be granted, and in the meantime the defendant was 'temporarily restrained from entering or visiting the residence' of the plaintiff in McIntosh County. The bill of exceptions recites that the sheriff of the county entered a return on August 22, 1959, that he had that day served the defendant 'by leaving same at her residence.'

On September 4, 1959, the date set for the hearing, the court entered an order reciting that the defendant had not filed any defensive pleadings, had not appeared, and that a copy of the order of August 20, 1959, together with a copy of the petition, was delivered to the defendant on August 21, 1959. The court continued the temporary restraining order and set the matter for hearing on November 27, 1959. On September 14, 1959, the sheriff filed a return in the case as follows: 'After due and diligent search I have been unable to locate the said Muriel M. Reynolds, within my bailiwick, and am advised and believe the said defendant to be a nonresident of said State and county.' On September 15, 1959, the plaintiff amended his petition by adding a second count alleging that the defendant is a nonresident of the State, and praying for service by publication.

On October 22, 1959, the plaintiff filed an ex parte application to take his own testimony by written interrogatories on the ground that he is ill, and 'that it is inadvisable for him at this time to leave his residence, travel and appear in court.' On the same date the court granted the plaintiff's application and set the date for the propounding to the plaintiff of the written interrogatories on November 7, 1959. By subsequent order dated October 24, 1959, the court set the date for the propounding of the interrogatories on November 21, 1959. On November 13, 1959, the defendant filed her verified answer, and at that time issue was joined.

On November 25, 1959, the defendant caused a subpoena to be directed to and served upon the plaintiff, commanding his appearance at a hearing set on December 15, 1959, to give oral testimony under crossexamination on behalf of the defendant, on the matter of the temporary injunction and on such other matters as his testimony might be required. On December 3, 1959, the plaintiff obtained an ex parte order continuing the hearing on the temporary injunction from December 15, 1959, to January 14, 1960. On December 17, 1959, the defendant filed a motion for permission to go into the residence where she and the plaintiff had been living, on Sapelo Island, for the purpose of removing her clothing, personal effects, and other property. The court set the motion for hearing on December 31, 1959. On December 18, 1959, the defendant caused to be issued a subpoena directed to, and served upon the plaintiff, commanding his appearance on December 29, 1959, for the taking of his oral depositions under cross-examination by the defendant at the courthouse in McIntosh County. On the same day the defendant served the plaintiff with a notice to produce certain specified documents at the time and place set for the hearing, and she also served the plaintiff's counsel with a copy of a notice of the taking of depositions, and with a copy of the notice to produce.

Prior to the date set for the taking of the plaintiff's oral depositions, and prior to the hearing of the defendant's motion for permission to go onto Sapelo Island for the purpose of obtaining her property which remained there, the plaintiff on December 21, 1959, filed a written application for, and obtained from the court, an ex parte order for a pretrial conference, on January 14, 1960. In addition to setting the pretrial conference, the court ordered as follows: 'In the meantime all matters pending for a hearing in said case and cause of action, including the motion to modify the restraining order, the notice to take the depositions of the plaintiff, and the notice to produce certain records, documents, transactions ect., are hereby postponed and continued, and held in abeyance until after said pretrial conference of said attorneys and until the further order of this court. The said Commissioner, Mrs. Minnie Lee Johnson, named as Court Commissioner, will suspend said hearing to take the depositions of said plaintiff until the further orders of this court.'

In the first assignment of error in the bill of exceptions the defendant excepts to this part of the order on the ground that the ruling was erroneous, highly prejudicial, and contrary to law. It is asserted that: The order was not on motion of any party or by the person to be examined, as prescribed by law, but on the court's own motion, without any notice, as required by law. Without good cause shown, the order quashed and vacated the subpoena and notice for the taking of the plaintiff's depositions, and was contrary to the provisions of Ga.L.1959, pp. 425, 432 (Code Ann. § 38-2105(b)). The defendant's cause was greatly prejudiced by the court's order, in that she was prohibited from obtaining the oral depositions of the plaintiff under cross-examination at a time set by her when, in so far as was shown by the record then before the court, there was no impediment to the giving of such oral testimony.

The extract from the order of the court herein quoted, on the application of counsel for the plaintiff for pretrial conference, is clearly error. The act of 1953 (Ga.L.1953, Jan.-Feb. Sess., p. 269, Code Ann. §§ 81-1013, 81-1014), which appears to be the same as Rule 16 of the Federal Rules of Civil Procedure (28 U.S.C.A., Rule 16, pp. 591, 592), does not, directly, or by inference, confer upon the judge of the superior court any power to vacate, modify, or set aside valid proceedings pending in the cause in which such pretrial conference is set by the court. Rule 16 of the Federal Rules was adopted to enable the court, by agreement and admission of the parties, to procure a speedy trial on simplified issues. Nichols v. Sanborn Co., D.C., 24 F.Supp. 908; Geopulos v. Mandes, D.C., 35 F.Supp. 276; Berger v. Brannan, 10 Cir., 172 F.2d 241.

By an act of the General Assembly approved March...