Summary
In Duncan v. Duncan, 226 Ga. 605 (176 S.E.2d 88) this court held that it was error for the trial court to place the defendant under disability to remarry in the absence of a special prayer therefor. It follows that the portion of the judgment placing the defendant under disability is erroneous. It is directed that this portion of the judgment be stricken.
Summary of this case from Motes v. MotesOpinion
25791.
ARGUED MAY 11, 1970.
DECIDED JULY 9, 1970. REHEARING DENIED JULY 28, 1970.
Divorce. Cobb Superior Court. Before Judge Hames.
Arthur L. Crowe, Jr., for appellant.
G. Robert Howard, for appellee.
Hylton B. Dupree, Jr., Duard R. McDonald, J. A. Cochran, Ben F. Smith, Cesar Rodrequez, J. Wesley Channell, Don F. DeFore, for parties at interest not parties to record.
The trial court erred, in its judgment granting the plaintiff wife a divorce, in placing the defendant husband under the disability to remarry, in the absence of any special prayer to that effect in the pleadings.
ARGUED MAY 11, 1970 — DECIDED JULY 9, 1970 — REHEARING DENIED JULY 28, 1970.
1. "Where a divorce shall be granted, the jury or the judge, as the case may be, shall determine the rights and disabilities of the parties: Provided, however, that no person shall be placed under disabilities unless there is in the pleadings a special prayer that he be placed under such disabilities." Code Ann. § 30-122 (Ga. L. 1946, pp. 90, 93; as amended, Ga. L. 1960, pp. 1024, 1025). (Emphasis supplied.) The italicized portion of the foregoing statute, added by the 1960 amendment, brings the rule as to placing parties under disabilities within the general rule in this State, that relief cannot be granted for a matter neither alleged nor sought. Frady v. Frady, 222 Ga. 184, 185 ( 149 S.E.2d 324) and cit.; Pray v. Pray, 223 Ga. 215 ( 154 S.E.2d 208) and cit.
2. "... [T]his court will never pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge. [Citations.]" (Emphasis supplied.) Calhoun v. State, 211 Ga. 112, 113 ( 84 S.E.2d 198). In the present case, the point of the constitutionality of the 1960 amendment to Code Ann. § 30-122, supra, was not directly or properly made by the parties in the trial court, hence was not the subject matter of a ruling by the trial judge.
3. Nor is it shown that this court has jurisdiction to pass on the constitutionality of said amendment by the fact that the trial judge has certified in this court, under the provisions of Code Ann. § 6-805 (f) (Ga. L. 1965, pp. 18, 24), that his purported holding of the said amendment to be unconstitutional had been made "in open court" as "the basis of the judgment complained of in this case" and had also been "made in said Cobb Superior Court in more than twenty cases unappealed from." This "holding" was not included in the written judgment. "There can be no order or judgment by inference or implication that can be the subject of review by an appellate court. [Citations.]" Calhoun v. State, supra, p. 113. Even if it were considered a part of the judgment, moreover, it would not necessitate this court's passing on the issue of constitutionality, since such issue had not been properly injected into the case by the parties, as held in Division 2, hereinabove.
4. Accordingly, the trial court erred, in its judgment granting the plaintiff wife a divorce, in placing the defendant husband under the disability to remarry, in the absence of any special prayer to that effect in the pleadings.
Judgment reversed. All the Justices concur.