Taylor v. Taylor, 19365

• Decision Date: 07 September 1956
• Docket Number: No. 19365,19365
• Citation: 212 Ga. 637,94 S.E.2d 744
• Parties: Margery Badger TAYLOR v. Fred TAYLOR.
• Court: Georgia Supreme Court

Page 744

94 S.E.2d 744

212 Ga. 637

Margery Badger TAYLOR v. Fred TAYLOR.

No. 19365.

Supreme Court of Georgia.

Sept. 7, 1956.

Rehearing Denied Oct. 11, 1956.

Matthews & McClelland, Atlanta, for plaintiff in error.

Douglas C. Lauderdale, Jr., Osgood O. Williams, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

MOBLEY, Justice.

On July 8, 1954, Fred Taylor brought his petition for divorce against Margery Badger Taylor. The parties were married in April, 1949. On August 26, 1954, the defendant filed an answer and cross-action, which she twice amended, praying that she be awarded a divorce and permanent alimony. On December 8, 1955, a jury returned a verdict awarding the defendant a divorce and permanent alimony. In due course, the plaintiff filed a petition to modify and set aside the verdict and judgment, to which petition the defendant filed general and special demurrers. The trial court passed an order sustaining some of the demurrers and overruling others, and thereafter sustained the motion to modify and set aside the verdict and judgment and granted the plaintiff a new trial. To the judgments overruling her demurrers and sustaining the motion to modify and set aside and granting the plaintiff a new trial, the defendant excepts. Held:

1. Paragraph 8 of the plaintiff's petition to modify and set aside the verdict and judgment alleges that the judgment does not follow the verdict, in that the jury awarded to Mrs. Taylor the equity in the house and lot located at 750 E. Paces Ferry Road, while the judgment awarded her, in addition thereto, lots 28 and 29 of block E in the Peachtree Highland Subdivision, it being contended that said lots 28 and 29 are not a part of the house and lot known as 750 E. Paces Ferry Road. In her amended answer and cross-action, Mrs. Taylor prayed that she be awarded possession and fee-simple title to the real estate located at 750 E. Paces Ferry Road together with all vacant land appurtenant thereto, said real estate being located in land lot 46 of the 17th District of Fulton County. That part of the verdict was, 'We the jury grant the equity in house & lot locate at 750 E. Paces Rd., Atlanta, Ga.,' to Mrs. Taylor. A judgment must conform to the verdict, Code, § 110-301; and likewise it must follow the true meaning and intent of the finding of the jury. Manget-Brannon Co. v. White Crown Fruit Jar Co., 20 Ga.App. 339, 93 S.E. 307. 'Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity.' Code, § 110-105. In determing whether a judgment conforms to the verdict, the judgment must be construed with reference to the pleadings and the evidence. Stanfield v. Downing Co., 186 Ga. 568, 199 S.E. 113; Bentley v. Still, 198 Ga. 743, 32 S.E. 814; Powell v. Moore, 202 Ga. 62, 66, 42 S.E.2d 110. The pleadings do not allege and the evidence does not show that the plaintiff owned any vacant property appurtenant to the residence located at 750 E. Paces Ferry Road. Therefore, following the above-cited rules for the construction of verdicts, in the absence of pleadings or evidence showing the plaintiff to be the owner of vacant property appurtenant to 750 E. Paces Ferry Road, it could not be said that in awarding the defendant the equity in the house and lot located at 750 E. Paces Ferry Road the jury intended to award any vacant property appurtenant thereto to the defendant. The judgment identifies lot 25, block B of the Peachtree Park Subdivision, located in land lot 46 of the 17th district of Fulton County, Georgia, as being improved property known as 750 E. Paces Ferry Road, and this part of the judgment conforms to the verdict of the jury. On the other hand, there is nothing to identify lots 28 and 29 of block E of the Peachtree Highland Subdivision, located in lot 46 of the 17th district of Fulton County, Georgia, as being a part of or contiguous to or in any way connected with the improved property at 750 E. Paces Ferry Road, and accordingly this part of the judgment does not conform to the verdict and is contrary to the law and the evidence. Since the judgment did not follow the verdict, the petition to modify and set aside set out a cause of action and was not subject to general demurrer. The judgment of the trial court, overruling the general demurrer, was not error.

2. 'The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.' Code Ann. § 6-1608, and cases cited thereunder. We are dealing here with the first grant of a new trial by the trial judge, and if Code, § 6-1608 is applicable to the first grant of a new trial upon a petition to modify and set aside a verdict and judgment for divorce and alimony, as provided for in Code Ann. § 30-101, the judgment of the trial judge will not be disturbed by this court, as the law and facts do not require the verdict in favor of the defendant, and no abuse of his discretion is shown.

It has been definitely settled by this court in several decisions, Stebbins v. Stebbins, 206 Ga. 529, 57 S.E.2d 564; Champion v. Champion, 207 Ga. 431, 61 S.E.2d 822; Neal v. Neal, 209 Ga. 199, 71 S.E.2d 229; Branch v. Branch, 211 Ga. 22, 83 S.E.2d 601;...