Opinion
17055.
MAY 8, 1950.
REHEARING DENIED JUNE 16, 1950.
Divorce. Before Judge Wood. Fulton Superior Court. January 13, 1950.
Reuben A. Garland and Anthony A. Alaimo, for plaintiff in error.
Rache Bell, contra.
1. The act of 1946 (Ga. L. 1946, p. 90; Code, Ann. Supp., § 30-101), amending the divorce law, and providing for a period of thirty days in which a petition to modify or set aside a judgment for divorce may be filed, did not repeal or modify Code §§ 81-1301, 81-1302, as to the right of amending petitions. Accordingly, there is no merit in the exception made by the husband to the effect that the petition to set aside the judgment, though filed within thirty days, could not thereafter be amended.
2. Where a wife, a resident of DeKalb County, files a suit for divorce in Fulton Superior Court, and the husband files an answer in the nature of a cross-action and a plea to the jurisdiction under Code § 81-501, in which it is asserted that the Superior Court of DeKalb County has jurisdiction, the wife has the right to elect whether to contest the plea to the jurisdiction or to dismiss her suit and proceed in the court so designated; and where, as here, she dismisses her suit, files another in DeKalb Superior Court, and has the husband personally served, this is tantamount to an admission that the plea to the jurisdiction is meritorious, and by such dismissal the court has been divested of jurisdiction of the case before the hearing on the cross-action. Accordingly, where the husband, after being served with a copy of the suit in DeKalb Superior Court, and without notice to the wife, appears in Fulton Superior Court, dismisses his plea to the jurisdiction, and procures a judgment for divorce on his cross-action, the same is void for the want of jurisdiction of the person, under Code § 110-709, as under the circumstances the court has been divested of jurisdiction of the case before the hearing on the cross-action. Therefore the court did not err in overruling the motion to dismiss the wife's petition to set aside the divorce judgment obtained in Fulton Superior Court.
Judgment affirmed. All the Justices concur.
No. 17055. MAY 8, 1950. REHEARING DENIED JUNE 16, 1950.
This was a proceeding to set aside a divorce judgment. The motion to set aside alleged the following: The wife, a resident of DeKalb County, filed a suit against her husband in Fulton Superior Court on February 24, 1948, for divorce, temporary and permanent alimony, custody of a minor child, and attorney's fees. On February 28, 1948, the husband filed an answer and cross-petition, and at the same time filed a plea to the jurisdiction, and alleged that he was a resident of DeKalb County and only the superior court of that county had jurisdiction. It was alleged that the "said cause" was heard by a judge of Fulton Superior Court, who took it under advisement but before a decision was reached the parties resumed cohabitation at their residence in DeKalb County and lived together until about September 30, 1949. On October 6, 1949, the wife filed another suit for divorce, temporary and permanent alimony, custody of the minor child, and attorney's fees, in DeKalb Superior Court, upon which a rule nisi was issued. On the same day this suit was filed the wife dismissed her pending suit in Fulton County. The DeKalb suit and rule nisi were served personally on the husband on October 7, 1949, and the rule nisi directed him to show cause before the Judge of DeKalb Superior Court on October 18, 1949, why the prayers of the petitioner should not be granted. On the morning of the day the rule nisi was set for a hearing on the DeKalb divorce suit, the husband appeared in Fulton Superior Court, without any notice to the wife or her attorney, dismissed his pending plea to the jurisdiction, filed an amendment to his cross-petition, and obtained a judgment granting a divorce and custody of the minor child.
On November 10, 1949, which was within 30 days from the date of the judgment, the wife filed the foregoing motion to set aside the judgment. At a hearing thereon on November 22, 1949, the husband moved to dismiss the motion as failing to state sufficient grounds for setting aside the judgment. On December 1, 1949, the wife filed an amendment to her motion, asserting: that the original divorce case was not on the trial calendar, did not so appear in the Fulton County Daily Report, and that it was substituted for another case on the trial calendar; that she had no knowledge the divorce case had been amended or that the plea to the jurisdiction had been dismissed and a decree obtained until it was presented at the hearing before the Judge of DeKalb Superior Court on the rule nisi issued in her suit for divorce, which was the afternoon of the same day the decree was granted in Fulton Superior Court.
To the order allowing the amendment the husband objected on the grounds that it was not filed or allowed within 30 days from the date of the divorce judgment, and no order authorizing the filing of an amendment was secured within the 30-day period. To the petition as amended the husband renewed his motion to dismiss on the grounds that it failed to set forth sufficient grounds to set the judgment aside. To this order overruling his objections to allowing the amendment, and to the order overruling his motion to dismiss the petition as amended, the husband excepted.