Opinion
16355.
OCTOBER 13, 1948. REHEARING DENIED NOVEMBER 18, 1948.
Alimony, etc. Before Judge Sloan. Habersham Superior Court. June 18, 1948.
George L. Goode, for plaintiff in error.
Kimzey Kimzey, for defendant.
1. There is no merit in the motion to dismiss the bill of exceptions.
2. The allegations of the petition failed to state a cause of action for a declaratory judgment to establish that the plaintiff and the defendant were not husband and wife, and the court erred in overruling the oral motion to dismiss the petition.
No. 16355. OCTOBER 13, 1948. REHEARING DENIED NOVEMBER 18, 1948.
Henry Sutton Forrester filed in Habersham Superior Court against Emmie Gibbs a petition for a declaratory judgment which alleged substantially the following: An actual controversy exists between the parties, in that the defendant is falsely claiming in the community to be the wife of the petitioner, and such false claims are causing him great embarrassment and humiliation. The defendant is the mother of a child, and is falsely contending that the petitioner is the father of the child. She caused to be issued a warrant accusing the petitioner of abandonment of the child, which charge is pending in the City Court of Habersham County, and there is a possibility that she may cause other warrants to issue against him. The petitioner is 68 years of age, with a life expectancy of only a few years. In paragraph 18 it is alleged that, in order to afford the petitioner and his executors, administrators, heirs at law, or legatees under any will which he might have made or might hereafter make relief from uncertainty and insecurity with respect to rights, status, and other legal relations with reference to the defendant, the petitioner brings this petition at law under the provisions of the act approved February 12, 1945 (Ga. L. 1945, p. 137 et seq; Code, Ann. Supp., § 110-1101 et seq.), for a declaration of right establishing that the defendant did not marry the petitioner by a ceremony performed September 4, 1946, at Walhalla, South Carolina, or by a ceremony performed at any time at any place, and that the declaration of right further establish that the defendant is not the wife of the petitioner and that she has never been his wife, and that they have never entered into any marriage contract with each other, and are not now and have never been husband and wife. The prayers were: that process issue; that the issues between the petitioner and the defendant as set out in paragraph 18 of the petition be submitted to a jury; that the petitioner be granted the declaration of right prayed for in paragraph 18 of the petition; and that the petitioner have such other and further relief as may be legal and proper.
The defendant interposed a demurrer on the ground among others that the allegations contained in the petition did not state facts showing an actual controversy between the parties. The defendant also filed an answer in the nature of a cross-petition, which denied material allegations of the petition and sought to recover alimony for the support of herself and the child, and attorney's fees.
The petitioner made a motion to strike the defendant's demurrer and also demurred to her answer, the objection to each being that each of the pleadings showed on its face that it was not filed within 30 days from the date of service of the petition, as required by the act approved February 1, 1946 (Ga. L. 1946, p. 761 et seq.; Code, Ann. Supp., §§ 81-301, 81-305). On June 8, 1948, the court sustained the ground of the motion to dismiss and the petitioner's demurrer, and struck the defendant's demurrer and answer in the nature of a cross-petition. On motion of the petitioner, the court then overruled a written motion of the defendant to open the default, whereupon the defendant made an oral motion to dismiss the petition on the ground that no cause of action for a declaratory judgment was therein stated. The court denied the oral motion to dismiss the petition and rendered the following judgment: "The above and foregoing case not having been answered on or before the appearance day thereof and the time for answering same not having been extended, and said case now being in default; it is ordered . . by the court, without the intervention of a jury, that the plaintiff . . and the defendant . . are not married; that the defendant . . is not the wife of the plaintiff, . . and that she has never been his wife, and that they have never entered into any marriage contract with each other, and are now not and have never been husband and wife."
The defendant in a direct bill of exceptions assigns error on the action of the trial court: (1) in striking her demurrer and answer in the nature of a cross-petition; (2) in denying her motion to open the default; (3) in overruling her oral motion to dismiss the petition; and (4) in entering final judgment in favor of the plaintiff and against her.
1. A motion was made in the Supreme Court to dismiss the writ of error, on the ground that there is no valid exception taken to a final judgment. The bill of exceptions contains the following statement: "That the court, without a jury trial, thereupon entered a final judgment in said case in favor of plaintiff and declaring in his favor and against defendant in accordance with the prayers of plaintiff's petition. . . To the action of the court in entering final judgment in favor of the plaintiff and against the defendant, defendant then and there excepted, now excepts, and assigns the same as error as being contrary to law." The insistence is that the exception (1) is merely to the action of the court in entering final judgment, and that it is not an exception to the judgment entered; and (2) that since the case was tried by the court without the intervention of a jury, the exception is too vague and indefinite to present any question for decision by the Supreme Court.
Under a proper construction, the assignment of error is to the judgment entered. There were several assignments of error in the bill of exceptions upon antecedent rulings of the court on questions of law which necessarily resulted in a final default judgment against the defendant; and since no question of fact was before the court when the final default judgment was rendered, a general assignment of error was sufficient. See, in this connection, Code (Ann. Supp.), § 110-401; Atlanta Banking Savings Co. v. Chastain, 150 Ga. 640 (1) ( 104 S.E. 628); Cheatham v. Palmer, 191 Ga. 617 (1b) ( 13 S.E.2d 674).
There is no merit in the motion to dismiss the bill of exceptions.
2. A controlling question is whether the court erred in overruling the oral motion to dismiss the petition.
"If the defendant calls in question by demurrer the sufficiency of the petition, and the court renders a decision holding that the petition sets forth a cause of action, so long as this decision stands unreversed the defendant is precluded from calling in question the sufficiency of the petition by oral motion to dismiss. Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504 (1) ( 46 S.E. 659).
In the present case, when the defendant demurred on the ground that the allegations contained in the petition did not state facts showing an actual controversy between the parties, the plaintiff objected to the court's entertaining the demurrer, on the ground that the demurrer showed on its face that it was not filed within 30 days from the date of service of the petition as required by Code (Ann. Supp.), § 81-301. In the circumstances, when the court sustained the objection and dismissed the defendant's demurrer the only adjudication that became the law of the case was that the demurrer was not filed within 30 days as required by law. Therefore, in the absence of an adjudication that the petition set forth a cause of action, the effect of striking the demurrer was to leave the petition standing just as though no demurrer had been filed; and it thus becomes necessary to determine whether the court erred in overruling the oral motion to dismiss the petition on the ground that no cause of action for a declaratory judgment was therein stated.
Where a petition is fatally defective in that it does not set forth a cause of action, it may be attacked by oral motion to dismiss at any time before verdict, without the need of a demurrer. Code, § 81-302; Kelly v. Strouse, 116 Ga. 872 (5a) ( 43 S.E. 280); Dingfelder v. Georgia Peach Growers Exchange, 184 Ga. 569 (1) ( 192 S.E. 188).
The petitioner alleges that the defendant falsely claims to have entered into a ceremonial marriage with him, that he is the father of her child, and that she caused to be issued a warrant accusing him of abandonment of the child. Under the allegations of the petition, the sole issue of whether or not the parties are husband and wife is one of fact. No statute is involved, and the parties know, without any declaration by any court, whether or not they entered into a ceremonial marriage which the petitioner alleges the defendant claims as a basis for her assertion that she is the wife of the petitioner. The petitioner is not asking the court for any light before taking a step in the dark, which, as pointed out in Mayor c. of Athens v. Gerdine, 202 Ga. 197 ( 42 S.E.2d 567), is the justification for a declaratory judgment, and obviously the petition does not come within the purview of the statute (Ga. L. 1945, p. 137), providing for a declaratory judgment in a proper case.
Accordingly, the petition failed to state a cause of action for a declaratory judgment, and the court erred in overruling the defendant's oral motion to dismiss the petition.
In view of the above ruling, it becomes unnecessary to pass upon other assignments of error.
Judgment reversed. All the Justices concur, except Bell, J., absent on account of illness.