Wilbanks v. Wilbanks
| Decision Date | 21 October 1924 |
| Docket Number | (No. 4186.) |
| Citation | 125 S.E. 202,159 Ga. 196 |
| Parties | WILBANKS. v. WILBANKS. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Action by Whitford C. Wilbanks against Elizabeth A. Wilbanks. Judgment on rule for contempt, and plaintiff brings error. Affirmed.
On July 8, 1920, Whitford C. Wilbanks filed his petition for divorce against Elizabeth A. Wilbanks. On September 7, 1920, the defendant filed her answer and crossbill, praying for temporary and permanent alimony for herself and minor child. On December 17, 1921, a verdict and decree were rendered on the petition and cross-bill, finding $6,000 alimony for the support of the wife and minor child, to be paid in installments, and $100 attorney's fees. On January 28, 1921, this verdict and judgment were set aside by the judge of the superior court. On that date an order was passed by consent of counsel for both sides, awarding $40 per month for permanent alimony for the support of Mrs. Wilbanks and her minor child, and $100 attorney's fees. On February 28, 1921, an order was passed by agreement of counsel for both parties, striking the answer and cross-bill praying for alimony filed by Mrs. Wilbanks. On March 30, 1921, a first verdict in favor of Whitford C. Wilbanks was rendered, awarding him a divorce. On July 6, 1921, a second verdict was rendered, finding a total divorce between the parties, removing the disabilities of Mrs. Wilbanks, and awarding her $20 per month for herself for permanent alimony and $20 per month for support of the minor child until she should become 21 years of age, in lieu of the consent order of January 28, 1921. A decree was taken in accordance with the verdict.
On July 10, 1923, the plaintiff filed his motion to set aside so much of this verdict and decree of July 6, 1921, as awarded $20 per month permanent alimony to Mrs. Wilbanks, and $20 per month to her for the support of the minor child until she became 21 years of age, on the ground that said portion of the verdict and judgment of July 6, 1921, awarding alimony, was absolutely void for the reason that there were no pleadings before the court to authorize the verdict and judgment, and there was no issue as to alimony before the jury or the court when the verdict and judgment were rendered. Defendant answered this motion, denying certain paragraphs. On November 21, 1923, Mrs. Wilbanks applied for a rule for contempt against the plaintiff, on the ground that he had failed to pay the $20 per month awarded to her under the decree of July 6, 1921, for the support of the minor child. W. C. Wilbanks answered, denying the legality of the decree of July 6. Both the motion of Wilbanks to set aside the verdict and decree of July 6, 1921, in so far as the alimony part was concerned, and the rule for contempt taken by Mrs. Wilbanks, were heard together by consent. After hearing the evidence the court rendered judgment, denying the motion of the plaintiff to set aside the alimony part of the verdict and decree, and rendered a judgment on the rule for contempt, ordering the plaintiff to pay all arrears of alimony due for the support of the minor child to the clerk of the court by February 1, 1924. and all other alimony due for the support of the child; the order being granted "to preserve the status pending the filing of a bill of exceptions." To this order the plaintiff excepted.
Lowndes Calhoun, of Atlanta, for plaintiff in error.
Jas. E. Warren, of Atlanta, for defendant in error.
HILL, J. (after stating the facts as above). [11 1. The question to be determined in this case is whether the plaintiff in error, after having agreed to a decree being rendered against him, can, after the decree has been complied with by him in part, afterwards tile a motion to set aside the decree on the ground that, when the defendant dismissed her answer which is in the nature of a cross-petition asking for alimony and divorce, there are no pleadings to authorize it. In the motion to set aside it is not alleged that the decree...
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