Opinion
37265.
DECIDED SEPTEMBER 24, 1958. REHEARING DENIED OCTOBER 16, 1958.
Workmen's compensation. Cobb Superior Court. Before Judge Manning. April 29, 1958.
Ben F. Smith, for plaintiffs in error.
Smith, Swift, Currie McGhee, Glover McGhee, Theo. D. Fenster, contra.
1. Where the judge of the superior court is sitting in a divorce case without the intervention of a jury, he has plenary control of his judgment during the term at which it is rendered.
2. The petition in a divorce case, brought under the former Code (Ann.) § 30-101 praying that a decree previously entered be modified, not revealing that the petitioner was not entitled to relief prayed, if defective or insufficient, was amendable.
3. The judgment in the divorce case to which reference has previously been made was not shown to be void, and could not be collaterally attacked in another case and different forum.
DECIDED SEPTEMBER 24, 1958 — REHEARING DENIED OCTOBER 16, 1958.
An application was filed by Lorene Gentry Juneau, the alleged widow of Sims Joseph Juneau, Jr., before the State Board of Workmen's Compensation in Atlanta, Georgia. It was stipulated upon the call of the case by the deputy director that Sims Joseph Juneau, Jr., was an employee of Lockheed Aircraft Corporation on June 10, 1957, and that he had been so employed for some time prior thereto. It was further stipulated that he received an accidental injury resulting in his death arising out of and in the course of his employment at Lockheed, and that his wages were $110.00 weekly.
Mrs. Sims Juneau, Sr., mother of the deceased, and Mr. Sims Juneau, Sr., father of the deceased, intervened in the proceedings and contended and now contend that a valid and legal marriage contract had never been entered into between Sims Joseph Juneau, Jr., and his alleged wife.
Mrs. Lorene Gentry Juneau testified in substance that she and the deceased entered into a ceremonial marriage on June 2, 1957, in Catoosa County at Ringgold, Georgia. The marriage certificate was introduced into evidence together with the certificate issued by the Ordinary of Catoosa County. She further testified that she obtained her divorce in Gordon County, Georgia. She also testified that that was the only time she had ever been married and that the recorded decree in Gordon County Superior Court was the only proceeding she had ever filed for divorce.
A certified copy of the divorce judgment obtained by the former husband of the alleged widow, one Robert M. Gentry, was introduced into evidence by stipulation. The judgment among other things contained the provision that the defendant who is the claimant, Lorene Gentry Juneau, in this case, "shall not have the right to remarry." On October 6, 1951, the said Lorene P. Gentry, claimant in this case filed the following motion in Gordon Superior Court:
"Robert Gentry No. 2938 vs. Gordon Superior Court Lorene P. Gentry August Term, 1951 "Now comes the defendant on the above named and stated case and before the judgment in said case becomes final and asks that the disabilities placed upon her by the court on the 18th day of September 1951 be removed."The Honorable J. H. Paschall, Judge of Gordon Superior Court signed the following order:
"At Chambers, Calhoun, Georgia October 6, 1951 "The above and foregoing coming on for hearing and after consideration thereof, it is considered, ordered and adjudged that the disabilities placed on the defendant on the 18th day of September, 1951 be removed, and that the defendant in said case be allowed to remarry."It is the contention of the claimants, Mr. and Mrs. Sims J. Juneau, Sr., that the order was void and did not operate to effectively and legally remove the disabilities placed upon Lorene Gentry Juneau, claimant in the case at bar. They insist that since the widow, Mrs. Sims Joseph Juneau, Jr., was laboring under disability at the time she married the deceased employee, she was not his legal widow and that they and not she were entitled to the compensation payable on account of his death.
The Workmen's Compensation Board awarded the widow the compensation, the superior court affirmed the award, the senior Juneaus excepted and the case comes here for review.
1. A motion for modification of a divorce decree which does not comply with former Code (Ann.) § 30-101 does not confer upon the judge of the superior court the authority to set aside or modify the decree. Allison v. Allison, 204 Ga. 202, 204 ( 48 S.E.2d 723). We do not understand this holding to mean that the judge cannot during the term exercise plenary power over his judgment in divorce cases as in other cases. It was held in a divorce case, Dover v. Dover, 205 Ga. 241 (1) ( 53 S.E.2d 492) that, "While this court has held that a judge of the superior court has no authority to entertain in vacation a motion to set aside a judgment of that court and is without jurisdiction to render judgment on such a motion in vacation ( Haskins v. State, 114 Ga. 837, 40 S.E. 997; U.S. Fidelity Guaranty Co. v. First National Bank, 149 Ga. 132 99 S.E. 529), it is well-settled law that a court has plenary control over its judgments, orders, and decrees during the term at which they were made, and, in the exercise of a sound discretion, may revise, revoke, or modify them. Gaines v. Gaines, 169 Ga. 432 (1) ( 150 S.E. 645); Lawson v. Haygood, 202 Ga. 501 (3) ( 43 S.E.2d 649). This power may be exercised by the court, at the same term, on his own motion without notice to either party. Athens Apartment Corp. v. Hill, 156 Ga. 437 (1) ( 119 S.E. 631); Jones v. Garage Equipment Co., 16 Ga. App. 596 ( 85 S.E. 940)."
2. The petition in a divorce case, brought under the former Code (Ann.) § 30-101 praying that a decree previously entered be modified, not revealing the petitioner was not entitled to relief prayed, if defective or insufficient, was amendable. Powell v. Powell, 207 Ga. 1 ( 59 S.E.2d 718).
The petition filed by Mrs. Lorene Gentry Juneau, widow of the deceased, in the divorce case between her and a former husband (the petition is set forth in the foregoing statement of fact) praying that the decree previously entered be modified and that she be permitted to remarry, did not disclose that she was not entitled to the relief prayed, and under the holding in Powell v. Powell, 207 Ga. 1, supra, was amendable. Pleadings may in effect be amended by evidence adduced upon the trial. Franklin Savings Loan Co. v. Branan, 54 Ga. App. 363 ( 188 S.E. 67). The contrary not appearing, it is presumed that every evidential fact necessary to authorize the judgment removing the present claimant's disabilities and permitting her to remarry was shown to the judge of the superior court.
The plaintiffs in error insist, but the record does not show, that the former husband of the widow claimant was not served with her motion to modify the divorce decree. There being nothing in the record from which the contrary may be inferred, it is presumed that service was perfected or waived by the opposite party.
It is held in Watkins Co. v. Herring, 51 Ga. App. 396 (2), ( 180 S.E. 525), "Unless a pleading shows on its face that a cause of action does not in fact exist, or the pleading is so utterly defective that it could not be amended at all, or the defect is of such character as renders unenforceable or meaningless a verdict and judgment based thereon, defects in the pleading are cured by the verdict, on the theory that there is a conclusive presumption that the jury had before it sufficient evidence to authorize the verdict on every essential ingredient, necessary for its rendition, which would have been admissible or relevant under any proper amendment. Rollins v. Personal Finance Co., 49 Ga. App. 365, 366 ( 175 S.E. 609), and cit.; Code of 1933, § 110-705."
The rule applies to judgments rendered when the judge is the trior of fact. Tietjen v. Merchant's Nat. Bank, 117 Ga. 501, 504 ( 43 S.E. 730).
3. The judgment in the divorce case to which reference has previously been made was not shown to be void, and could not be collaterally attacked in another case and different forum. Hood v. Hood, 143 Ga. 616 ( 85 S.E. 849).
Judgment affirmed. Nichols, J., concurs. Felton, C. J., concurs in the judgment.