Opinion
16725.
JULY 12, 1949.
Habeas corpus. Before Judge Andrews. Fulton Superior Court. April 28, 1949.
Goldberg Payton, for plaintiff.
Paul Webb, Solicitor-General, and William Hall, for defendant.
The alimony judgment, under which the husband was held in contempt for nonpayment, was not a void judgment.
No. 16725. JULY 12, 1949.
LeRoy Craddock was held in contempt for the nonpayment of alimony. He sought release by habeas corpus, asserting that the alimony judgment was void. Court records in support of his claim were introduced.
On February 26, 1946, his wife filed suit in Fulton Superior Court for temporary and permanent alimony. On August 29, 1946, he filed suit in Fulton Superior Court against his wife for a divorce. Though this suit was filed in Fulton Superior Court its caption was "Georgia, Coweta County. To the Superior Court of said State and County," and alleged in paragraph two: "The defendant is a resident of said State and County." The defendant, in her answer, admitted the allegations in paragraph two. In her answer there was a prayer for alimony, but not for divorce. On the day his suit was filed there was a consent order taken consolidating her suit for alimony with his suit for divorce. At the trial on September 29, 1948, the jury returned a verdict as follows: "We the jury find in favor of the defendant, Mrs. Mabel Craddock, and grant her permanent alimony of $100 per month. . ." In accordance with this verdict a decree and judgment was issued. After being held in contempt for the failure to pay the alimony he sought his release by habeas corpus and contends that the judgment is void for want of jurisdiction. To the order remanding him to the custody of the sheriff exceptions are brought to this court.
We must take the records of the previous litigation and determine therefrom whether the judgment for alimony is void. Her suit was not for divorce, but for alimony only. It alleged his residence was Fulton County. His suit for divorce was subsequently filed in Fulton County though captioned "Georgia, Coweta County" and alleging the residence of both to be in "said county," which was admitted in her answer and cross-bill for alimony. Both of these suits were filed in Fulton Superior Court. It will be presumed that process was issued and served, requiring answer to be made to the Superior Court of Fulton County. When called for trial in that court, by consent, the cases were consolidated and tried as one case, and a verdict returned and judgment issued. Where so consolidated, the cases became merged in a single case ( O'Malley v. Wilson, 182 Ga. 97 (1), 185 S.E. 109; Northwest Atlanta Bank v. Zec, 196 Ga. 114 (3), 26 S.E.2d 183), with all the allegations and prayers of both suits to be determined by the jury. It did not eliminate her separate suit for alimony under the Code, § 30-213, and become merely a suit for divorce or divorce and alimony under § 30-210, where the granting of a divorce was necessary to sustain a verdict for alimony. To so construe the effect of the consolidation, as insisted by the plaintiff in error, would be tantamount to holding that the order of consolidation struck her separate suit for alimony and her cross-bill for alimony. With the issues so consolidated, and her suit for alimony alleging that both were residents of Fulton County, with all the proceedings taking place in Fulton County, and there being no question raised on the trial as to the jurisdiction, it seems clear that the heading of his suit as being "Georgia, Coweta County" was by mere inadvertence, which was an amendable defect and cured by judgment. Wingate v. Gornto, 147 Ga. 192 (1) ( 93 S.E. 206); Gamble v. Shingler, 22 Ga. App. 608 (1) ( 96 S.E. 705).
Accordingly, the court records, standing alone, do not show the judgment to be void.
In the habeas corpus hearing there was no other evidence produced seeking to show that either party resided elsewhere than in Fulton County at the time the judgment was rendered.
Judgment affirmed. All the Justices concur.