Stallings v. Stallings
| Decision Date | 18 February 1907 |
| Citation | 56 S.E. 469,127 Ga. 464 |
| Parties | STALLINGS v. STALLINGS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
An application for temporary alimony must be based on a pending suit for divorce or for permanent alimony.
Where in an action to obtain the granting of a total divorce, the awarding of temporary and permanent alimony, and the subjection of property to the payment thereof, it was alleged that the parties had established a family home in a certain county of this state, and that the legal residence and family domicile of both had since been there maintained, service of the suit should have been perfected on the defendant personally, or by leaving a copy at his most notorious place of abode.
Although the defendant may have had business interests outside of the state, which required much of his time, and although, when the suit was brought, he may have been absent from the state for an indefinite length of time, this did not authorize service of the original petition and process upon him as a nonresident, if he had a legal residence in Georgia at which service could have been perfected on him.
Service of process in commencing a suit (not to enjoin a pending action) cannot be perfected by service by the sheriff on one described as the attorney of the defendant, in lieu of serving the defendant himself, it appearing that he has a legal residence in this state where service can be perfected on him; nor in such a case can the presiding judge, by order authorize service to be made by serving such attorney and by sending a copy by registered mail to the defendant, although he may be absent from the state on business for an indefinite time.
The question in which one of two counties the defendant had his legal domicile being in controversy, this was a mixed question of law and fact to be determined under the evidence.
The rule that appearance and pleading waives irregularities in the process or its absence, and the service thereof, and the other rule which declares that, if a defendant appear and plead to the merits, without pleading to the jurisdiction and without excepting thereto, he admits the jurisdiction of the court, have no application so as to effect a waiver where the defendant excepted to the service, moved to dismiss the case for want of service, and pleaded to the jurisdiction at the time of filing his defense.
It appearing from the pleadings and evidence that service of the petition and process was not lawfully perfected on the defendant, it was error, over his objection duly made, to proceed to hear an application for temporary alimony and the appointment of a receiver for his property, and to make the appointment and direct that a certain amount be paid by the receiver to the plaintiff monthly, and a specified amount to her attorneys for filing the application for temporary alimony and prosecuting it, and to authorize the receivership to be dissolved on the giving of bond by the defendant for the payment of the temporary alimony and fees.
Service of an application for temporary alimony pending a suit for divorce and permanent alimony must be personal.
If it is impossible to serve the defendant personally because of his indefinite absence from the state, and there is property of his in the state which is in imminent danger of being lost, destroyed, depreciated by waste, or removed, so as to defeat the right to alimony, it would seem that the presiding judge may, on a proper showing and under proper pleadings appoint a receiver to preserve the property, but cannot fix temporary alimony and order it paid by the receiver.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by B. W. Stallings against George T. Stallings. Judgment for plaintiff as to temporary alimony and the appointment of a receiver, and defendant brings error. Reversed.
The filing of the petition in the clerk's office will be considered the commencement of the suit if service is perfected as required by law, but not otherwise.
Mrs. Belle White Stallings filed her equitable petition against her husband, George T. Stallings, in the superior court of Fulton county. She alleged, in brief, as follows: As a result of infatuation for another woman her husband had been guilty of infidelity toward her, and has abandoned her and her two children, and refuses to support them. She and her husband established the family home in the city of Atlanta, Ga., some three years before the bringing of the suit, and since that time the legal residence and marital domicile of both petitioner and defendant have been maintained in good faith in that city. He has business interests in other states which require much of his time without the state of Georgia. He is now without the state, "where he will remain for an indefinite period of time, so that it will not be possible to obtain personal service on him unless and until he should voluntarily return to this state." He is a large stockholder in a baseball and amusement company in Buffalo, N.Y., and in a baseball company in Providence, R. I.; and she is informed that he receives a salary of $4,000 as manager of the former company, and that he has an income of from $3,000 to $5,000 annually in addition thereto. He also owns a farm in Jones county, Ga., and has certain deposits of money in the banks in this state. She apprehends that he will withdraw these deposits, and will transfer and convey his land and property in Jones county. She prayed that she be granted a total divorce, permanent alimony, temporary alimony and the custody of the children, and also that a receiver be appointed to take charge of the property of the defendant in this state; that he be directed to pay to her out of the proceeds of the property such temporary alimony, expenses, and counsel fees as the court may allow; that the defendant be enjoined from incumbering or disposing of his property in this state, and for general relief and process. On the presentation of the petition, the judge of the superior court appointed a temporary receiver, and granted a restraining order against the defendant and against the banks in which the deposits were made. He also ordered that the defendant should show cause why injunction and temporary alimony should not be granted, and that the defendant be served with a copy of the petition and amendment which had been made thereto, and of this order, by serving a copy upon J. J. Hastings, Esq., his attorney, and also by sending a copy by registered mail, postage prepaid, to the last known address of the defendant. At the hearing counsel for plaintiff stated that he had served a copy of the petition on Mr. Hastings, attorney for the defendant, and had sent a copy to the defendant at Buffalo, N.Y., by registered mail, and had received a receipt for the registered package. The sheriff also returned that he had served Mr. Hastings personally with a copy of the petition, process, and order, and that the defendant had not been found in Fulton county. The defendant moved to dismiss the case, because no proper and legal service had been made upon him, either personally or by leaving a copy at his most notorious place of abode, and he had not waived service personally or by attorney. He demurred to the petition, filed a plea to the jurisdiction on the ground that he was a resident of Jones county and not of Fulton county, and also made answer. The court, after hearing certain evidence introduced by the plaintiff, and argument, ordered that the injunction and receivership be continued pendente lite, or until further order of the court; that the receiver, out of the estate of the defendant in his hands, pay to the plaintiff $150 per month, pending the litigation, or until further order, and to her attorneys $250 as attorney's fees for filing the petition "and prosecuting this hearing for temporary alimony"; that, it appearing that the receiver had not sufficient money in hand to meet the requirements of this order, the court would entertain an application for leave to sell or hypothecate certain rent notes in his hands; and that the receiver might be discharged and the receivership terminated upon the filing by the defendant of a bond in the sum of $5,000, with good security conditioned "upon his paying the temporary alimony to the plaintiff as herein above ordered," counsel fees and costs, and expenses of the receivership. Defendant excepted.
Smith, Berner, Smith & Hastings, for plaintiff in error.
Ellis, Wimbish & Ellis, for defendant in error.
LUMPKIN, J. (after stating the facts).
Service before judgment is the general rule of procedure. Cases where seizure is had before service (such, for example, as the appointment of a temporary receiver ex parte, when necessary,...
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