Roberts v. Roberts

• Decision Date: 09 October 1946
• Docket Number: No. 15595.,15595.
• Parties: ROBERTS. v. ROBERTS.
• Court: Georgia Supreme Court

39 S.E.2d 749

ROBERTS.

v.ROBERTS.

No. 15595.

Supreme Court of Georgia.

Oct. 9, 1946.

Syllabus by the Court.

Where the wife in a divorce action also sought permanent and temporary alimony, and the court issued a rule nisi for the defendant husband to show cause on a specified date why he should not be required to pay temporary alimony and attorney's fees, and after a hearing on the date named the court entered an order awarding the wife temporary alimony and attorney's fees, the fact that at such hearing the pleadings and records were not in the possession of the presiding judge or on the bench or in the court room, but admittedly were in the files in the office of the clerk of the court, did not render the judgment subject to the objection that it was illegal, void, and contrary to law because of such absence of the pleadings and records.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Action by Mary Elizabeth Roberts against Vivian H. Roberts, Jr., for divorce and permanent and temporary alimony. To review a judgment granting plaintiff tempo rary alimony and counsel fees, defendant brings error.

Judgment affirmed.

Mary Elizabeth Roberts filed in the superior court of Bibb County, Georgia, a petition against Vivian H. Roberts Jr., for divorce and permanent and temporary alimony. Pursuant to the issuance of a rule nisi, the application for temporary alimony and counsel fees came on for a hearing. After the presiding judge had sounded the calendar and called the particular case, each party announced ready and introduced evidence, upon the conclusion of which an order was entered granting the petitioner temporary alimony in the sum of $20 per week and attorney's fees in the sum of $15. At the time the case was called in the superior court room on the third floor of the Bibb County court house, the pleadings and all records in the proceeding were not before the presiding judge and not in the court room or on the bench or in the possession of the judge at any time during the hearing, but were in the files of the office of the clerk of the court, which was located on the main or second floor of the court house. The defendant excepts to the judgment, contending that it was illegal, void, and contrary to law because of such absence of the pleadings.

Hallie B. Bell, of Macon, for plaintiff in error.

Evans & Evans, Jack D. Evans, and Randall Evans, Jr., all of Thomson, for defendant in error.

DUCKWORTH, Justice (after stating the foregoing facts).

The plaintiff in error, in order to show the alleged invalidity of the judgment complained of, cites and relies upon authorities that pleadings may not be dispensed with even with the consent of the parties. Code Ann.Supp. § 24-3340; Central Bank of Georgia v. Johnson, 56 Ga. 225; Hicks v. Marshall, 67 Ga. 713; Martin v. Nichols, 127 Ga. 705, 709, 56 S.E. 995. These rulings, however, relate to instances where there is a total absence of pleadings, not merely in the court room but in the proper depository of the court, the files in the office of the...