Opinion
21321.
ARGUED JULY 11, 1961.
DECIDED OCTOBER 5, 1961.
Divorce. Newton Superior Court. Before Judge Guess.
Stone Stone, for plaintiff in error.
Campbell Vaughn, Clarence Vaughn, Jr., Edwin W. Ross, contra.
Where, in a divorce case, the defendant did not consent to trial during the September term, 1960, within one week of the appearance day, and the trial was not ripe until the January term, 1961, under Code § 81-201, then such verdict and decree may be set aside upon proper motion made by the defendant within six months of the date of the divorce decree.
ARGUED JULY 11, 1961 — DECIDED OCTOBER 5, 1961.
Franklin Lee Brown instituted suit against Mrs. Eloise Brown, nee Foxworth, in the Superior Court of Newton County, wherein he alleged he was a resident of Newton County and the defendant was a nonresident of Georgia whose address was unknown to him. An order for service by publication was passed on July 6, 1960; thereafter, on July 11, 1960, the suit was filed. The record shows, according to the publisher's affidavit, that the notice to the defendant was published on July 7, July 14, August 4, and August 18, 1960, in the official gazette of Newton County and that on September 19, 1960, an order was passed by a judge of the court declaring that service had been perfected as required by law. The suit was returnable to the September term, 1960, of Newton Superior Court which commenced on the third Monday in September, 1960, and the notice to the defendant commanded her to appear and answer on that date. On September 26, 1960, during the September term the case was, without the consent of the defendant, heard and a decree was entered granting the plaintiff a divorce.
On March 21, 1961, said Eloise Brown, nee Foxworth filed in Newton Superior Court her motion to set aside the judgment and decree dated September 26, 1960, granting a divorce to Franklin Lee Brown, wherein she alleged that the divorce suit was not ready for trial and judgment until the January term, 1961, of Newton Superior Court and that the judgment of September 26, 1960, granting the divorce was premature and void. A rule nisi issued calling upon the respondent in the motion, Franklin Lee Brown, to show cause why the divorce decree should not be set aside and declared void. The rule was served, under an order of the judge, on the attorney who obtained the divorce decree. The respondent Brown made no appearance. The attorney made a special appearance not as attorney for Brown, but in his own behalf, and protested that he was not employed by Brown at the time the rule was served upon him, that he was employed only to obtain a divorce for Brown and that his employment ended when the decree of divorce was entered.
To the order and judgment of May 3, 1961, vacating and setting aside the divorce decree of September 26, 1960, the respondent Brown excepted and assigned error, bringing the case to this court for review.
The explicit provisions of Code § 81-1003 as amended (Ga. L. 1935, pp. 481, 482; Ga. L. 1946, pp. 761, 776; Ga. L. 1956, pp. 68, 69; Ga. L. 1958, pp. 315, 316; Ga. L. 1960, pp. 1022, 1023) are that: "Except where provision is otherwise specifically provided for by law, all civil cases shall be triable at the `return' or trial term, as defined in Code section 81-201; provided, however, that any civil case, by consent of the parties thereto, may be tried any time after the appearance day of such case." Code § 81-201 as amended (Ga. L. 1946, pp. 761, 768) further provides: "If the period of time between the appearance day of a case and the day on which the next regular term of court is scheduled by law to begin is 30 days or more, the same shall be deemed to be returnable to that term. If the period of time between the appearance day of a case and the day on which the next regular term of court is scheduled by law to begin is less than 30 days, the case shall be deemed to be returnable to the next regular term of court thereafter." The appearance day of the divorce suit was September 19, 1960. The case was not ripe for trial until the January term, 1961, of Newton Superior Court, there being no consent on the part of the defendant to the case that it be tried at an earlier date. Henderson v. Henderson, 206 Ga. 23, 27 ( 55 S.E.2d 578); Hartley v. Hartley, 211 Ga. 616, 618 ( 87 S.E.2d 851). Code Ann. § 30-133 (Ga. L. 1935, pp. 481, 482) provides that such judgment may be set aside upon motion made by the defendant, or other person against whom such verdict or judgment was rendered, within six months from the date thereof.
Code § 24-3326 further provides: "The service of any notice, process, motion, rule or order of the court on the attorney of record for any party to a cause pending in any court in this State shall be deemed sufficient service." Under the facts of this case, the divorce decree rendered on September 26, 1960, could under Code Ann. § 30-133, be set aside on proper motion at any time within six months of its date. Under the provisions of this Code section (30-133), where the motion to set aside the verdict and judgment is made within the six months' period provided by the statute, the divorce suit has not finally terminated but is still a pending cause in the superior court. Evans v. Evans, 190 Ga. 364, 369 (2) ( 9 S.E.2d 254); Milhollin v. Milhollin, 214 Ga. 571 (2) ( 106 S.E.2d 33).
In Walker v. Floyd, 30 Ga. 237, 240, it is held: "The employment of counsel goes to the whole of the litigation, from the time of his employment to the end of the same, and he is expected, and it is his duty, to do every service in the progress of the cause that is necessary for the prosecution, protection, or defense of his client's right." See also Parks v. Bank of Adairsville, 13 Ga. App. 48 ( 78 S.E. 856). Therefore, service was made on the attorney of record in a "cause pending" within the meaning of said Code § 24-3326. The motion to set aside the divorce decree was in order and properly granted.
Judgment affirmed. All the Justices concur.