Zachary v. Zachary
| Decision Date | 23 February 1914 |
| Citation | 81 S.E. 120,141 Ga. 404 |
| Parties | ZACHARY v. ZACHARY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A petition for divorce, on the statutory ground of three years' continuous desertion, can be amended before the first verdict, by adding thereto a discretionary ground, based on cruel treatment perpetrated before the suit was filed. The case of Ring v. Ring, 112 Ga. 854, 38 S.E. 330, was decided by four Justices, and is not controlling in so far as it may conflict with the ruling above announced.
The answer of the defendant denied the allegations of the petition relative to the grounds of divorce, and contained allegations and a prayer seeking permanent alimony. The evidence as to cruel treatment upon the part of the wife was conflicting, and was such as would not ordinarily preclude the recovery of alimony. By virtue of the ruling in Davis v. Davis, 134 Ga. 804, 68 S.E. 594, 30 L.R.A. (N. S.) 73, 20 Ann.Cas. 20, it was error under the pleadings and evidence to omit to charge the law applicable to the subject of permanent alimony. Fish, C.J., and Atkinson, J., do not recede from their dissent in the case last cited.
The judge charged that in their discretion the jury might grant a total or partial divorce, but did not explain the difference between the two. It would be proper to explain the difference as set forth in Civil Code, § 2944 et seq.; but, in the absence of an appropriate request, such omission was not, under the facts of the case, sufficient ground for the grant of a new trial.
Error from Superior Court, Stephens County; J. B. Jones, Judge.
Suit for divorce by C. E. Zachary against Lola G. Zachary. Judgment for plaintiff, and defendant brings error. Reversed, with direction.
McMillan & Erwin, of Clarkesville, for plaintiff in error.
A. G. & Julian McCurry, of Hartwell, and Claude Bond, of Toccoa, for defendant in error.
Judgment reversed, with direction.
All the Justices concur.
To continue reading
Request your trial