A disability to remarry may be imposed only on a party who is not granted a divorce. Code Ann. § 30-122; Dillard v. Dillard, 197 Ga. 726 ( 30 S.E.2d 621) (1944). Since the judgment of divorce was granted on the "no fault" ground, the divorce was awarded to both parties.
Central of Ga. Ry. Co. v. Jones, 28 Ga. App. 258, 261, 262 ( 110 S.E. 914). That is a sound pronouncement of law applicable to the Lowry case; also to the decision in Singleton v. Singleton, 202 Ga. 269 (1) ( 42 S.E.2d 737), where this court approved the grant of a divorce to both the plaintiff and defendant where both were suing on the ground of cruel treatment, for there no question was raised as to the requirement that the court must charge that no divorce can be granted where the parties are guilty of like conduct. See also Dillard v. Dillard, 197 Ga. 726 ( 30 S.E.2d 621), where the same would apply. Counsel cite no case, and we are unable to find one, which holds that it is not error to fail to charge, without request, that "if both parties have been guilty of like conduct . . . then no divorce shall be granted" as provided in Code § 30-109.
3. Under these circumstances and the law applicable thereto, the third purported wife could not legally maintain the present action against a sheriff and his bondsmen for damages for the alleged negligent homicide of such named person as her husband, on the theory that she was his lawful wife. The ruling in Dillard v. Dillard, 197 Ga. 726 ( 30 S.E.2d 621), cited and relied on by counsel for the plaintiff in error, does not authorize or require a ruling in the present case different from the one here made. 4. Consequently, the trial judge did not err in sustaining the defendants' plea in bar to the present suit and in dismissing the action, on the ground that the plaintiff was not the lawful widow of the deceased.
In failing to make reference thereto, the defendant is left under the disability of not being able to contract another marriage. City of Atlanta v. Anderson, 90 Ga. 481 ( 16 S.E. 209); Dillard v. Dillard, 197 Ga. 726, 729 ( 30 S.E.2d 621); Miller v. Miller, 139 Ga. 282 (2) ( 77 S.E. 21). 5. Applying the rulings made in the preceding headnotes to the petition of the defendant to modify and set aside the judgment of divorce granted to the plaintiff, the trial court did not err in denying the same, and in refusing to submit it to a jury.