Opinion
16028.
JANUARY 9, 1948.
Divorce. Before Judge Almand. Fulton Superior Court. August 8, 1947.
Vester M. Ownby, for plaintiff in error.
Noah J. Stone, contra.
1. No suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former shall be a good defense to the latter, if commenced at different times. Code, § 3-601.
2. Permanent alimony shall be granted in the following cases: 1. In cases of divorce, as considered in Chapter 30-1. 2. In cases of voluntary separation. 3. Where the wife, against her will, shall be either abandoned or driven off by her husband. Code, § 30-210.
3. Where a husband filed a suit in the Superior Court of DeKalb County in 1942, seeking a divorce from his wife on the alleged ground of cruelty, to which suit she filed an answer and cross-action denying the alleged acts of cruelty, and averring further, in effect, that he had abandoned her and their two minor children, and spent the greater portion of his time with a low class of women, one in particular being named, and failed to provide support either for his wife or their children, and where upon such cross-petition the court ordered payment of a stated sum weekly as temporary alimony — the cause of action upon which the wife relied in such case was different from that alleged by her in a subsequent suit, which she filed in Fulton County in 1947, for permanent and temporary alimony and attorney's fees, wherein she alleged that, after reconciliation and resumed cohabitation, he was again guilty of neglect and misconduct, culminating in a statement that he was through with her and did not intend to live with her any longer, and by his conduct she was driven from home; the cause of action as thus alleged in the second suit being based upon a second and different separation, following renewed cohabitation, and resulting, according to the allegations, from new acts of misconduct on his part. Accordingly, the suit brought by the wife in Fulton County for alimony and attorney's fees was not subject to abatement under the Code, § 3-601, supra, because of pendency of the suit for divorce and cross-action in DeKalb County. Mosley v. Mosley, 151 Ga. 543 (2) ( 182 S.E. 849).
4. Nor would the present suit be subject to abatement under the provisions of Code, § 30-213, that "such proceeding [a suit for alimony alone] shall be in abeyance when a petition for divorce shall be filed bona fide by either party, and the judge presiding shall have made his order on the motion for alimony," as construed and applied in Wallace v. Wallace, 157 Ga. 897 ( 122 S.E. 594). It did not appear in that case that, during the interim between the times of instituting the two actions, the husband and wife had resumed cohabitation, and had thereafter separated again so as to give rise to a new cause of action for alimony under the Code, § 30-210, supra. For the same reason, the present case is also distinguished by its facts from Goodrum v. Goodrum, 202 Ga. 135 ( 42 S.E.2d 450). See; in this connection, Evans v. Evans, 191 Ga. 752 ( 14 S.E.2d 95); Allen v. Allen, 194 Ga. 591 ( 22 S.E.2d 136).
5. Under the preceding rulings, the order allowing temporary alimony and attorney's fees in the action in Fulton County was not erroneous, as contended, on the ground that there was another suit pending based upon the same cause of action, as alleged in the plea in abatement. For the same reason, it was not erroneous to overrule and deny the motion for a rehearing as filed in the trial court.
( a) While the defendant in his motion for rehearing alleged that at no time since the filing of the original suit in DeKalb County in 1942 had there been a reconciliation or cohabitation between the parties, the judgment attacked in this motion stated that "there was oral testimony that after the suit for divorce and alimony was filed in DeKalb County the parties resumed cohabitation and lived together as husband and wife, and that this action was instituted after a subsequent separation," which statement in the judgment must be taken as true as against the mere allegation to the contrary in the motion for rehearing, no evidence in support thereof having been introduced, so far as appears.
6. Since in any view of other questions the rulings made above would require an affirmance of the judgment — whether or not it should be affirmed for other and additional reasons need not be determined. But see Bland v. Bird, 134 Ga. 74 (2b) ( 67 S.E. 427); Thomas v. Thomas, 145 Ga. 111 (2) ( 88 S.E. 584); Jones v. Jones, 178 Ga. 710 (3) ( 174 S.E. 338); Moody v. Moody, 193 Ga. 699 (5) ( 19 S.E.2d 504). As to the status of the former suit and judgment for temporary alimony after reconciliation and renewed cohabitation, see Harn v. Harn, 155 Ga. 502 ( 117 S.E. 383); Weeks v. Weeks, 160 Ga. 396 ( 127 S.E. 772); Hamby v. Pye, 195 Ga. 366 (1) ( 24 S.E.2d 201).
Judgment affirmed. All the Justices concur, except Duckworth, P. J., absent on account of illness, and Wyatt, J., who took no part in the consideration or decision of this case.
No. 16028. JANUARY 9, 1948.
On June 19, 1947, Mrs. Lena G. Dempsey filed in the Superior Court of Fulton County, against her husband, P. L. Dempsey, a suit for permanent and temporary alimony and attorney's fees. The defendant filed a special plea, alleging that a suit based on the same cause of action had been filed in the Superior Court of DeKalb County in 1942, and that such previous suit was still pending and undetermined. On July 19, 1947, on the application for temporary alimony and attorney's fees, based on the 1947 action, the following order was passed:
"Counsel for the defendant contended that the plaintiff could not maintain this action in view of the fact that there was a pending suit for divorce and alimony in DeKalb Superior Court. No formal proof by record was submitted to the court as to such action, but there was oral testimony that, after the suit for divorce and alimony was filed in DeKalb County, the parties resumed cohabitation and lived together as husband and wife, and that this action was instituted after a subsequent separation. Even if such action had not been dismissed in DeKalb, under the evidence such former suit is not a bar to this action. Therefore, it is ordered and adjudged that the defendant pay as temporary alimony for the support of his wife the sum of $6.25 per week beginning July 26, 1947, and weekly thereafter at the rate of $6.25. It is further ordered that the defendant pay to the plaintiff as attorney's fees the sum of $75 payable at the rate of $25 per month beginning August 1, 1947. This July 19, 1947.
Bond Almand, Judge, Superior Court, Atlanta Circuit."
There was no exception to this order, nor does the record, aside from the statements contained in the order itself, show what evidence was introduced at the hearing, but on July 30 the defendant filed a motion for a rehearing, in which it was alleged that at no time since the filing of the original suit in the Superior Court of DeKalb County on July 7, 1942, has there been a reconciliation or cohabitation between the parties, and that he is now paying temporary alimony in accordance with an order based on that case. He also alleged that such former suit had never been dismissed, and by amendment he attached as an exhibit to such special plea a certified copy of proceedings in DeKalb County, showing thereby as a matter of pleading: (1) a suit for divorce by the husband filed on July 7, 1942; and (2) an answer and cross-action filed by the wife on July 15, 1942, wherein she prayed for allowance of permanent and temporary alimony and attorney's fees.
It also appeared from the exhibit that on August 7, 1942, she was granted $4.50 per week as temporary alimony, and that on May 13, 1947, she filed in the same (former) suit an application to increase the amount so previously allowed. No order was ever passed either granting or refusing this application.
In his motion for a rehearing, the defendant prayed for a rule nisi and service, and that the plaintiff, Mrs. Dempsey, show cause why the order of July 19, 1947, should "not be set aside for the reasons herein given." On August 28, 1947, Judge Almand passed an order simply stating that the motion for rehearing was denied, and that the order of July 19 was allowed to proceed.
The defendant excepted to this order and brought the case to this court, complaining that such order was erroneous upon all the grounds stated in the motion for rehearing, and was contrary to law, in that the judge should not have denied the motion, but should have passed upon the plea in abatement, on such motion, and should have dismissed the case, for the reason that with a suit pending undetermined in DeKalb Superior Court at the time of filing the suit in Fulton Superior Court, the latter court had no jurisdiction, that the plea in abatement set forth a legal cause for the dismissal of the plaintiff's petition, and that the court should have sustained the same and dismissed such petition.
It does not appear that the exhibit or exhibits attached by amendment to the plea in abatement pending the motion for rehearing were introduced in evidence, or that any other evidence was introduced in support of the allegations contained in such motion.
Since it was alleged both in the original plea in abatement and in the motion for a rehearing that the present suit as filed by the wife in Fulton Superior Court on June 19, 1947, wherein she prayed for permanent and temporary alimony and attorney's fees, was based upon the same cause of action as was the previous suit in DeKalb County, consisting of a suit for divorce by the husband and an answer and cross-action as filed thereto by the wife, the contents of the respective suits in the two courts will be stated.
First, as to the previous litigation in DeKalb County:
The suit for divorce brought by Mr. Dempsey in that county was based on alleged cruelty, one of the allegations being that the defendant "has gone to the extent of organizing the children, the issue of said marriage, into a band of antagonistic people, causing them through and under her influence to trap him on the street, hem him against the curb, strike him, hit him in the face, and try to take his pocketbook away from him." Still other acts of cruelty were alleged; the suit as above stated having been filed in July, 1942. In her answer and cross-action as filed in that case, Mrs. Dempsey denied the alleged acts of cruelty, and further alleged that there were two minor children of the marriage, that the plaintiff (husband) was not contributing a sufficient amount to take care of either of these children, and that he was making no contribution to help take care of his wife. She further alleged that for the past several years he had devoted the greater portion of his time to running with a low class of women, and has become infatuated with one Annie Hogan, with whom he constantly associates; having abandoned his wife and children and allowing his wife to work and slave in a cotton mill.
The present suit as filed by the wife in Fulton Superior Court alleged substantially the following:
1. The defendant is a resident of said State and county.
2. The plaintiff and defendant were married in 1910, and lived together until they reared a family of several children, when the defendant deserted the plaintiff and remained away from her for several years, during which time he was paying a small sum of alimony under a temporary order based upon a divorce suit filed by him against her in DeKalb County.
3. On May 28, 1947, the defendant came to the plaintiff and begged her to return to him, promising that he would furnish her a home. At this time there was pending an application to increase the alimony. Because of her love for the defendant and her children, "who are all grown, married, and they have many grandchildren," she agreed to return to the defendant, and she went to live with him in a home that he owned in Atlanta. He promised to provide for her during the remainder of her life, and it was agreed between them that whatever had transpired in the past would not be brought up or referred to by either of them. Under these conditions, she moved into the home with him.
4. After they had moved into the home at 657 Julian Street, the defendant bought a few canned goods, and two gallons of milk per week; and their married daughter, who was separated from her husband and her children moved into the house with them and the food stated was all that they had to eat. They remained in the house for approximately two weeks, when the defendant broke his promise and began to accuse her of falsifying in the trial of the former case, and said that he was through with her and did not intend to live with her any longer, and by his conduct has driven her from home.
5. In 1941 or 1942, the defendant became infatuated with one Annie Hogan, and from that time until the plaintiff went back to him, the defendant had lived either with or in the house with Annie Hogan, and they worked together in business and she was known as his wife, although they were not married, as the defendant was all of this time legally married to him. At the time the plaintiff returned to him on May 28, 1947, he assured her he had severed all connection with Annie Hogan, had paid her all sums due her, that he was through with her and never intended to see her any more, "and immediately after he had moved your petitioner in his home, and your petitioner moved in the same day that Annie Hogan moved out, the defendant has been visiting Annie Hogan every day, taking her to and from work, bought a filling station for her, and placed her in the filling station, and that she cannot live with him under these conditions."
6. The defendant owns the home on Julian Street and owns a filling station at 300 Ashby Street, and she is advised and believes that he owns the filling station which Annie Hogan is operating on Simpson Street, and that he has an income sufficient to take care of her the rest of her life.
7. The plaintiff is 58 years of age, suffering from arthritis, and has always been nearsighted, and is now so blind that she cannot walk the streets alone, and she asks that she be granted temporary and permanent alimony and counsel fees for prosecuting this suit.
8. The plaintiff does not ask for a divorce, but does ask for support and that the defendant be restrained and enjoined from transferring, assigning, or selling any property, including his automobile which he now owns.