Opinion
41785.
SUBMITTED FEBRUARY 9, 1966.
DECIDED MARCH 3, 1966.
Garnishment, etc. Fulton Civil Court. Before Judge Webb.
Marvin P. Nodvin, for appellants.
Paul C. Myers, Charles H. Wills, for appellee.
1. The overruling of a general demurrer to a traverse to a garnishment in which several grounds of alleged invalidity of the proceeding are included is not res judicata as to all grounds of the traverse. It is no more than a judgment that some one or more of the grounds is sufficient to withstand the assault of a general demurrer.
2. A decree of divorce is not void for the reason that the defendant was, at the time suit was filed, a resident of another county, where the defendant had waived service and agreed that the suit be disposed of at the first term of the court in which it was filed, indicating in the waiver and agreement that his residence was that alleged in the petition, and where subsequent to the decree he filed a motion for new trial and a motion to vacate and set aside the decree, both of which were overruled and those orders stand unreversed.
3. A decree of divorce which included as a part thereof a contract between the parties which they had stipulated should be included in and made a part of any decree entered in a divorce proceeding between them is not void because of vagueness or uncertainty in provisions of the contract where the defendant filed a motion for new trial and a motion to vacate and set aside the decree, both of which were overruled and those orders stand unreversed.
4. Under the circumstances above recited, invalidity of the decree, or of the contract included as a part thereof, cannot be raised in a traverse to a garnishment proceeding based upon the decree and instituted for the purpose of collecting from the defendant sums alleged to be due and owing thereunder.
SUBMITTED FEBRUARY 9, 1966 — DECIDED MARCH 3, 1966.
Joan Maddox Musgrove, now Sammons, and William Thomas Musgrove, after a marriage in due from of law, together purchased a home at 3427 Chestnut. Drive, Doraville, DeKalb County, and resided there until a divorce action was instituted in DeKalb Superior Court in December, 1963. One child was born to them. The house and lot was encumbered to Atlanta Federal Savings Loan Association. Prior to the filing of the divorce action the parties, with the assistance of their attorneys, entered into an agreement whereby the mother was to have custody of the child, with certain visiting rights for the father, the father was to pay to the mother $100 each month, beginning on or before March 15, 1964, for the support of the child and to continue until the child should marry, become self-supporting or reach the age of 21, whichever should first occur.
The parties being tenants in common of the home, and the husband being a real estate salesman himself, it was agreed that he would make bona fide effort to sell the property to the best advantage, the wife to receive the net proceeds up to $5,000, and if he should fail to effect a sale before June 30, 1964, the property was to be listed for sale with a broker of her choice, with all net proceeds to go to her.
The husband agreed that he would pay all maturing installments on the loan, all insurance premiums and taxes as they became due and make all repairs that might become needed for the preservation and protection of the property until a sale was consummated. The wife agreed that in the event a satisfactory sale should be worked up she would execute all needed papers for its completion, as did the husband.
A divorce was contemplated and it was stipulated that the agreement should be made a part of the decree when rendered. At the time of signing the agreement the parties acknowledged service upon the wife's petition for divorce in which it was alleged that the husband resided at 3427 Chestnut Drive, Doraville in DeKalb County, and agreed that it should stand for trial at the first term. Following the signatures of both parties were indicated his and her residence address, being in each instance 3427 Chestnut Drive.
The action was filed and in due course a final decree of divorce was entered January 17, 1964, reciting that the agreement, attached as an exhibit, was made a part thereof and the parties were ordered to abide its terms.
Shortly after the decree was entered Mrs. Musgrove married Dr. Edward E. Sammons, and thereafter on February 14, 1964, Mr. Musgrove filed a motion for new trial and a motion to vacate and set aside the decree, contending that it had been procured by fraud.
After hearing, the motions were overruled and a bill of exceptions was sued out to the Supreme Court. The Judge of DeKalb Superior Court certified that the recitals in the bill of exceptions were true "except as hereinafter qualified," and added a note saying that when the case was tried before him the plaintiff testified to each and every allegation in the petition and that it was substantiated by competent evidence.
Because of the manner in which the bill of exceptions was certified the Supreme Court dismissed the writ of error, Musgrove v. Musgrove, 220 Ga. 390 ( 139 S.E.2d 315), and the decree became final.
There were several citations for contempt against the husband on account of alleged failures to abide by the alimony and support provisions of the decree. One or two of them had to do with the monthly payment for child support, and the citations were dismissed when the arrearages were paid up. One citation was based upon the failure of the husband to pay the loan installments to Atlanta Federal on the home, the taxes and insurance premiums, and to make needed repairs, all as provided for by the agreement which was made a part of the decree.
There had been no sale of the house, though the husband did have two or three prospects or offers prior to June 30, 1964, which failed, either because the prospective buyer backed out or because the offer was unacceptable to the wife. He paid the loan installments up to July, but since there had been no sale, and any sale thereafter would, under the agreement, inure wholly to the wife's benefit, he made no further payments, and the wife found it necessary to make certain past due payments in order to avoid a foreclosure. There was a question about some needed repairs. Taxes had not been paid.
There was some arrearage in the child support payment, which was paid up at or before the hearing, and after hearing an order was entered discharging the husband from the contempt rule. The order discharging defendant did not indicate whether he was discharged because of the fact that payments had been caught up, because of financial inability to pay, or otherwise. But the record indicates that financial inability was not raised as an issue at the hearing. Rather, it was contended that the contract, because of vagueness, was incapable of enforcement.
Thereafter the wife applied to the Clerk of DeKalb Superior Court for an execution based upon the decree, asserting in the application that the husband was in arrears the sum of $1,802.62 for delinquent payments, unpaid taxes and the cost of needed repairs on the dwelling. Execution issued, and based thereon garnishment was sued out in the Civil Court of Fulton County and summons served upon the husband's employer and upon a bank where he carried an account. A dissolution bond was filed and the garnishment affidavit was traversed upon the ground that the agreement was void for vagueness and uncertainty and that the decree incorporating it was likewise void for that reason, and upon the further ground that the decree was void because the defendant in the divorce action had not been a resident of DeKalb County when the suit was filed.
The issue made by the traverse was tried before Judge Webb without a jury. Much evidence was introduced, both oral and documentary. The record is voluminous. The traverse was denied and judgment entered for the plaintiff, Mrs. Musgrove, now Sammons, for $1,556 against the defendant husband and the surety on the dissolution bond.
From that judgment this appeal was entered, enumerating as errors what usually constitute the general grounds in a motion for new trial, and that in overruling a general demurrer to the traverse the court had "set the law of the case" that the decree upon which the garnishment was founded was void because of vagueness and uncertainty in the contract, and others which are but variants of this contention.
1. We cannot agree that the overruling of a general demurrer to the traverse of the garnishment or of an oral motion to dismiss it amounted to an adjudication that the divorce decree from DeKalb Superior Court was void. The traverse contained as one of its grounds that the defendant had, in good faith, abided by the contract and decree, as well as grounds in which it was asserted that the contract and decree were void for vagueness and uncertainty. It is well settled that if a pleading is good for any reason a general demurrer or a motion to dismiss should be overruled. If the defendant had, as he contended in the traverse, in good faith abided the contract and decree, the court could well have found that the traverse was good, and this entirely without reference to the matter of whether the decree was, for any reason, void.
On the matter of whether the decree was void, we think that when the defendant filed in DeKalb Superior Court a motion to vacate and set aside the decree on the ground that it had been procured by fraud, and the judgment adverse to him on that became final, he is bound by the decree. These rulings became the law of the case. While he did not, in the motion, assert that the fraud consisted in the obtaining of the decree with the knowledge that he was not a resident of the county, he did urge that position at the hearing. He contended that there had been no proof of his residence when the divorce was granted, and made reference to that in the bill of exceptions — which brought about the note by the judge certifying that every allegation of the petition had been supported by competent evidence. If he did not specifically make the contention in the motion to vacate and set aside it was his duty to have done so. "No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. . . He must discharge all his weapons, and not reserve a part of them for use in the future rencounter. He must realize that one defeat will not only terminate the campaign, but end the war. . ." Perry v. McLendon, 62 Ga. 598, 605.
Moreover, if the facts of this case show that the obtaining of the decree of divorce in DeKalb Superior Court was fraudulent for this reason, it was self-induced. The hands of the defendant were equally as soiled in this respect as were those of the plaintiff, and he could not, even in a court of equity, have the decree set aside on this ground. McConnell v. McConnell, 135 Ga. 828 ( 70 S.E. 647); Musgrove v. Musgrove, 213 Ga. 610 (2) ( 100 S.E.2d 577). He can not so trifle with the courts. Merritt v. Merritt, 210 Ga. 39 ( 77 S.E.2d 438).
The decree is valid and binding and we cannot give consideration to the many contrary contentions which the husband made in the contempt proceedings, the garnishment proceedings or on this appeal. The contention that the discharge of the husband in the contempt proceeding based upon his failure to pay the installments on the home loan as they matured, etc., was res judicata that the decree and the contract which was made a part of it were void, is without merit. The decree itself, after an adverse judgment on the motion for new trial and on the motion to vacate and set aside, was res judicata as to all questions included or which might properly have been included, is the law of the case, and the parties are concluded thereby. In the posture here no subsequent judgment or order of the court did or could have changed that, and particularly no order or judgment discharging the defendant on a contempt rule. To hold otherwise would be to rob the decree of its finality, place the result of litigation in doubt even after its final termination and make unsettled that which has been and ought to be a settled matter. It would undermine the whole system of our jurisprudential procedure.
2. Whether the contract is vague and uncertain and, in the usual and ordinary course of things could not, for that reason, be enforced, is not a question open for determination in this proceeding. It could have been raised in the divorce action itself, but the defendant elected not to do so. It might have been raised in the motion for new trial, but that was not done — and in any event an unreversed judgment overruling that motion stands. It might have been raised in the motion to vacate and set aside the decree, the contract having been included in and made a part thereof, but that was not done — and again an unreversed judgment overruling that motion stands.
Consequently, the Civil Court of Fulton County correctly proceeded with a trial of the issues made by the traverse to the garnishment upon the premise that the decree, including the contract, was, as between these parties, a valid and binding judgment.
A question of fact was raised by the traverse as to whether the defendant was indebted under the decree in the amount claimed. A full trial was had on that issue. The judge, sitting without a jury, found as a matter of fact that the indebtedness due and outstanding was $1,556. If it is supported by any competent evidence, and we think it is, we have no option but to affirm.
We have examined all enumerations of error and find them to be without merit.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.