Swindle v. Swindle
| Decision Date | 02 February 1966 |
| Docket Number | No. 23270,23270 |
| Citation | 221 Ga. 760,147 S.E.2d 307 |
| Parties | Glen Terrell SWINDLE v. Virginia B. SWINDLE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The allegations in the present case were sufficient to allege a cause of action for divorce on the ground of cruel treatment.
2. The appellant has been relieved of the temporary restraining order complained of, and the questions raised in regard to this order are now moot.
3. The notice to produce of the appellee is not in the transcript of record, and the clerk of the superior court certifies that neither the original nor a copy of the notice is on file in her office. This court, therefore, can not determine whether the notice to produce was subject to the appellant's motion to dismiss.
4. The assignment of error on the admission of evidence can not be considered since the record does not show what objection, if any, was made to the evidence at the time it was admitted.
5. The trial judge had jurisdiction to grant temporary alimony to the appellee after the appellant had filed a notice of appeal from the order overruling his general demurrer to the petition.
Fred T. Allen, Nashville, for appellant.
W. D. Knight, E. R. Smith, Nashville, for appellee.
Virginia B. Swindle brought an action against Glen Terrell Swindle for divorce, alimony, and the custody of their minor child. The record before us for review contains two notices of appeal, one filed September 11, 1965, and the other filed September 30, 1965. The first notice designates the judgments appealed from as the order overruling the defendant's motion to quash and strike a notice to produce; the order denying his motion to strike and dismiss the temporary restraining order granted; and the order overruling demurrers. The second appeal designates the judgments appealed from as the order overruling demurrers and the order allowing temporary alimony. The two notices of appeal were sent to this court with one transcript of record which contained the proceedings pertinent to both notices of appeal. The enumeration of errors filed in this court designates alleged errors pertaining to the juegments appealed from in both notices of appeal.
The Appellate Practice Act of 1965 (Ga.L.1965, p. 18 et seq.), as amended (Ga.L.1965, p. 240 et seq.), does not indicate that appellants can file two notices of appeal in the same case. The record presently before us shows that both appeals were from appealable judgments, and both were filed in time. The transcript of record furnished is sufficient for either appeal. This court has exercised its discretion in dealing with the matters under review by treating the two appeals as one case.
1. The appellant asserts that the trial judge erred in overruling his general demurrer to the petition. The petition sought a divorce on the ground of cruel treatment, and the allegations asserting cruel treatment are as follows:
Cruel treatment as a ground of divorce is defined as 'the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb or health.' Ga.L.1946, pp. 90, 91 (Code Ann. § 30-102(10)). In Hirsch v. Hirsch, 217 Ga. 590, 123 S.E.2d 519, the allegations of 'fussing and nagging' as set out in the petition in that case were held to state a cause of action for divorce based on cruel treatment. The petition in the present case alleged that the defendant 'has continually nagged and fussed at your petitioner and stated that he no longer cared for her.'
Counsel for the appellant cites Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180. In the Ewing case it was held that the petitioner did not allege that any of the acts done or words spoken 'were done intentionally and for the purpose of injuring or wounding her.' In the present case it was alleged that 'said actions were spoken and done by the defendant for the purpose of wounding, injuring and hurting the feelings of your petit...
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Carlucci v. Carlucci
...Hunter v. Hunter, 155 Colo. 516, 395 P.2d 604 (1964); Bailey v. Bailey, 392 So.2d 49 (Fla.Dist.Ct.App.1981); Swindle v. Swindle, 221 Ga. 760, 147 S.E.2d 307 (Ga.1966); Shapiro v. Shapiro, 113 Ill.App.2d 374, 252 N.E.2d 93 (1969) citing Arndt v. Arndt, 331 Ill.App. 85, 72 N.E.2d 718 (1947) r......
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Wall v. Citizens & Southern Bank of Houston County, 58909
...Corp. v. Production 70's, Inc., 133 Ga.App. 765, 766(1), 213 S.E.2d 35. Compare Holleman v. Holleman, 69 Ga. 676 and Swindle v. Swindle, 221 Ga. 760(5), 763, 147 S.E.2d 307 (both involving temporary alimony); Thomas v. Home Credit Co., 133 Ga.App. 602, 604(1), 211 S.E.2d 626 (payment of cos......
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Shepherd v. Shepherd
...court had jurisdiction to revise its temporary order while the final judgment was on appeal to this court. See also Swindle v. Swindle, 221 Ga. 760(5), 147 S.E.2d 307. We believe the trial court correctly decided the issues raised in each of these cases and that its judgment should be affir......
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Thomas v. Scott
...errors are in proper form they may still be ruled insufficient or held not to be meritorious from the record. See Swindle v. Swindle, 221 Ga. 760, 147 S.E.2d 307. 2. The 2nd, 11th and 12th enumerations of error all involve the allowance in evidence over objection of testimony of two of the ......