Rogers v. Rogers

• Decision Date: 25 March 1898
• Citation: 30 S.E. 659,103 Ga. 763
• Parties: ROGERS v. ROGERS.
• Court: Georgia Supreme Court

30 S.E. 659

103 Ga. 763

ROGERS v. ROGERS.

Supreme Court of Georgia

March 25, 1898

Syllabus by the Court.

1. On the hearing of an application for temporary alimony, the judge has the discretion to hear the testimony either by affidavits or orally.

2. The judge, in such a case, may inquire into the cause and circumstances of the separation; and, if he hear testimony of the movant on this subject, it is error to refuse the respondent a like privilege.

3. In hearing testimony on the amount of attorney's fees, it was error to receive evidence as to what would be reasonable fees for four attorneys, it not appearing that the exigencies of the case required so many counsel. Reasonable compensation for such counsel as are necessary in the case should be the criterion in determining the amount to be allowed as expenses of litigation.

4. Under the facts of this case, a retainer fee of $500 for movant's counsel was excessive.

Error from superior court, Terrell county; H. C. Sheffield, Judge.

Libel by Louisa J. Rogers against John C. Rogers for divorce. Cross libel by respondent. From a judgment awarding temporary alimony, respondent brings error. Reversed.

Jas Guerry, J. G. Parks, M. C. Edwards, Jr., and Rosser & Carter for plaintiff in error.

W. C Worrill, J. A. Laing, and Yoemans & Rains, for defendant in error.

SIMMONS C.J.

Mrs. Rogers brought her libel for divorce, and applied to the court for temporary alimony. The respondent filed a cross libel in the divorce suit, and also filed an answer to her application for alimony. Temporary alimony was awarded Mrs. Rogers, and respondent brings the case here for review.

1. At the hearing of the application for temporary alimony, Mrs. Rogers introduced affidavits to show her condition in life, her present necessities, the amount of alimony necessary for her support pending the suit, and the amount necessary for her counsel. These affidavits were objected to by the respondent, on the ground that he was entitled to be confronted with the witnesses, and to have the privilege of cross-examining them orally. It was insisted by counsel for plaintiff in error that, under section 2457 of the Civil Code, the judge was compelled to hear the evidence orally, and that it was illegal for him to receive ex parte affidavits. They based their contention on the latter portion of the section, which reads as follows: "After hearing both parties, and evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the husband and the facts of the case may justify." We think that under this section the judge is not compelled to hear the parties and their witnesses orally. He can hear them and the evidence either orally or by affidavits, as he may deem best. It is a matter within his discretion. The hearing of an application for the temporary alimony is only a preliminary investigation, and the order granting such alimony is merely interlocutory, subject to review or modification at any time. Proceedings for a divorce and for alimony have always, under the practice in this state, been regarded as equitable. Following out the reasoning of counsel for plaintiff in error, the judge in the trial of an application for injunction would be compelled to hear the witnesses orally, and to allow them to be subjected to cross-examination. In regard to the practice in applications for injunctions, the Civil Code (section 4925) declares: "When any hearing shall take place in conformity to the rules of law now existing for granting and dissolving injunctions, the judge before whom said hearing takes place may grant or refuse said injunction on the terms the law now requires." If the word "hearing" contemplates oral examination in an application for alimony, it would apply also to an application for injunction.

I venture to suggest a doubt if any member of the bar of this state has ever insisted, upon an application for injunction, that the evidence must be heard orally, or if any judge would have sustained such a contention had it been made.

2. Section 2460 of the Civil Code provides that, "on applications for temporary alimony,...