Whaley v. Whaley
| Decision Date | 10 September 1951 |
| Docket Number | No. 17538,17538 |
| Citation | 66 S.E.2d 722,208 Ga. 323 |
| Parties | WHALEY v. WHALEY. |
| Court | Georgia Supreme Court |
Jesse M. Sellers, Jr., W. L. Abney, Jr., Lafayette, Robert McClure, Chattanooga, Tenn., for plaintiff in error.
Gleason & Painter, C. A. Noone, Harry F. Newton, Rossville, for defendant in error.
Syllabus Opinion by the Court.
On March 16, 1951, Shirley McGuffey Whaley filed in the Superior Court of Walker County her 'motion to perfect service and application for rule nisi for failing to pay temporary alimony, etc.,' wherein she alleged: that she had filed in that court on August 10, 1948, her suit for divorce, temporary and permanent alimony, attorneys' fees, and custody of children against Harold C. Whaley; that on presentation of that petition an order was issued by the court directing that a copy of the suit be served on the defendant, and that he show cause on August 16, 1948, why the prayers of the petition should not be granted. She alleged that Thos W. Bryan, Clerk of the Superior Court of Walker County, Georgia, had affixed a legal process to the original petition and to a true copy thereof for service on the defendant; that the clerk had signed the copy or counterpart process, which was served personally on the defendant by a named deputy sheriff on August 12, 1948, but through inadvertence and oversight the clerk had failed to sign the process completely filled out and attached to the petition, but that the process was complete in every respect except for the signature of the clerk thereon; that the defendant did not appear and defend the suit, and on August 16, 1948, the court awarded to the plaintiff temporary alimony in a stated sum for support of the wife and two children; and that the defendant has never paid any of the alimony awarded. She further alleged: that on February 21, 1949, a final decree for divorce and alimony was awarded; that the defendant left the State in 1948, returning in 1950; that she sued out an attachment for contempt and writ of ne exeat on November 3, 1950; that a hearing was had, the defendant was found to be in contempt of court, and on November 20, 1950, was ordered to pay $1,760 or be confined in the common jail; and that he refused to pay and was confined. It was further alleged that on February 27, 1951, Whaley sued out a writ of habeas corpus against the sheriff, alleging that the decree of divorce and alimony was null and void, as was also the order of November 20, 1950, finding him in contempt and confining him in jail, for the reason that T. W. Bryan, the clerk of said court had failed to sign the process on the original suit for divorce, and that he, Whaley, had never acknowledged or waived service and process in the original suit for divorce; that a hearing was had on the writ of habeas corpus on March 2, 1950, whereupon the court held that the 'sheriff did not hold legal custody of' the petitioner, Whaley, under order of the court of November 20, 1950, but remanding Whaley to the custody of the sheriff under a bench warrant held by the sheriff based on an indictment against him. Mrs. Whaley alleged in her motion that, while the clerk did not sign the original process, he did sign the copy thereof served personally on the defendant, and she prayed, among other things: that this motion be served on the defendant Whaley; that Thomas W. Bryan, clerk of said court, be directed to now sign the process attached to the original petition nunc pro tunc, and insert the date therein of August 10, 1948; that the defendant be required to answer this motion and the original divorce suit by a designated time, and that the issues thus made be submitted to a jury in Walker Superior Court; that the plaintiff be granted an absolute divorce from the defendant, and that on the final hearing the plaintiff be granted permanent alimony and attorneys' fees; that she be granted all other relief sought in her original petition; that the court issue a rule nisi on this motion or petition, requiring the defendant to show cause why he should not pay to the plaintiff $3,855 delinquent alimony, which had accrued under the order of August 16, 1948; that, upon his failure to do so, he be confined in the common jail until he does comply therewith; that he show cause why the court should not issue a writ of ne exeat to secure the appearance of the defendant in Walker Superior Court to answer said action; and for such other relief as she might be entitled to in the premises. An order was issued directing that a copy of this petition or motion be served on the defendant, and that he show cause on April 2, 1951, why the prayers of the petition or motion should not be granted. A copy of the motion and order was served on the defendant on March 19, 1951.
To this motion the respondent (or defendant) filed his answer and demurrer, in each of which he attacked the previous orders, judgments and decree of the court, upon the ground that there had been no lawful process and service of the original petition upon which the motion was predicated, nor any waiver thereof, nor any appearance by him, and in which he alleged that no valid judgment for alimony or divorce had ever been rendered against him for these reasons. He further alleged in his response that the movant (or plaintiff) was bound by the judgment rendered in the habeas corpus proceeding instituted by him against the sheriff. He also demurred to the motion by paragraphs 5 and 6 of his demurrer, upon the ground that it was duplicitous, in that it sought to have the court uphold and sustain the orders and judgments rendered for alimony, and in effect disclaiming that a valid decree or divorce was rendered upon the petition, since she sought by her prayers to have the issues of divorce submitted to a jury, and that she be granted a divorce.
The movant demurred to the defendant's answer or response, upon the ground that 'There is no fact or thing alleged in said response which in law or in equity amounts to a valid legal defense to said motion.'
The trial court overruled the respondent's demurrer to the plaintiff's motion, sustained the plaintiff'...
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Hackney v. Tench
...bound by the judgment setting aside the original decree for fraud, which did not appear on the face of the record. See Whaley v. Whaley, 208 Ga. 323(3), 325, 66 S.E.2d 722, and cases there 6. Under these indicated circumstances, the trial judge of the Superior Court of DeKalb County, in the......
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Swindell v. Swindell, 17727
...time of payment, and the balance of $20 to be applied to said judgment. Townsend v. Townsend, 205 Ga. 82, 52 S.E.2d 324; Whaley v. Whaley, 208 Ga. 323, 66 S.E.2d 722. Judgment All the Justices concur. ...