Cottingham v. Cottingham

Supreme Court of Georgia

Cottingham v. Cottingham

117 S.E. 376, 155 Ga. 460, 1923 Ga. LEXIS 93

CourtSupreme Court of Georgia

DecidedApril 12, 1923

DocketNo. 3395

StatusPublished

Cited by4 cases

This text of 117 S.E. 376 (Cottingham v. Cottingham) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cottingham v. Cottingham, 117 S.E. 376, 155 Ga. 460, 1923 Ga. LEXIS 93 (Ga. 1923).

Pincite

Opinion

Atkinson, J.

1. The demurrer to the 5th paragraph of the petition was not a general demurrer, as contended in the brief of the attorneys for the plaintiff in error, but was a special demurrer eliciting further information with reference to the matters therein stated. The allegations were demurrable on the grounds taken, and the judge did not err in sustaining the demurrer to that paragraph of the petition.

2. The demurrer to the 6th paragraph of the petition was also a special demurrer, and the judge did not err in sustaining so much of it as complained that there was no allegation as to the time when the "adultery occurred (Allen v. Gates, 145 Ga. 652 (5), 89 S. E. 821); but so much of the demurrer as complained of failure to allege the names of the persons with whom the adulteries were practiced was without merit, there being an allegation that the names were unknown and could not be specifically stated.

3. The judge overruled the general demurrer to the petition after it was amended. The demurrer did not anywhere urge the judgment in the former action as a bar, though some reference was made to the former suit in the special demurrer to the 6th paragraph of the petition, which related to the ground of adultery. The question of res adjudieata was raised only by the plea, and was a matter to be disposed of by the verdict of a jury. Whatever might be the right of the judge in a proper case to direct a verdict finding for or against a plea of res adjudieata on the trial of an action for divorce, he has no authority to enter a judgment disposing of the issues raised by such plea with[461]*461out the verdict of a jury, before the term of the court at which the case could be tried on its merits; Where he renders such a judgment, it will be reversed on an appropriate exception. Union Investment Co. v. Engesser, 151 Ga. 695 (107 S. E. 861).

No. 3395. April 12, 1923.

Judgment reversed.

All the Justices concur. Oliver & Oliver, for plaintiff. Lewis A. Mills Jr., for defendant.

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Atkinson, J.

1. The demurrer to the 5th paragraph of the petition was not a general demurrer, as contended in the brief of the attorneys for the plaintiff in error, but was a special demurrer eliciting further information with reference to the matters therein stated. The allegations were demurrable on the grounds taken, and the judge did not err in sustaining the demurrer to that paragraph of the petition.

2. The demurrer to the 6th paragraph of the petition was also a special demurrer, and the judge did not err in sustaining so much of it as complained that there was no allegation as to the time when the "adultery occurred (Allen v. Gates, 145 Ga. 652 (5), 89 S. E. 821); but so much of the demurrer as complained of failure to allege the names of the persons with whom the adulteries were practiced was without merit, there being an allegation that the names were unknown and could not be specifically stated.

3. The judge overruled the general demurrer to the petition after it was amended. The demurrer did not anywhere urge the judgment in the former action as a bar, though some reference was made to the former suit in the special demurrer to the 6th paragraph of the petition, which related to the ground of adultery. The question of res adjudieata was raised only by the plea, and was a matter to be disposed of by the verdict of a jury. Whatever might be the right of the judge in a proper case to direct a verdict finding for or against a plea of res adjudieata on the trial of an action for divorce, he has no authority to enter a judgment disposing of the issues raised by such plea with[461]*461out the verdict of a jury, before the term of the court at which the case could be tried on its merits; Where he renders such a judgment, it will be reversed on an appropriate exception. Union Investment Co. v. Engesser, 151 Ga. 695 (107 S. E. 861).

No. 3395. April 12, 1923.

Judgment reversed.

All the Justices concur. Oliver & Oliver, for plaintiff. Lewis A. Mills Jr., for defendant.

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Bluebook (online)

117 S.E. 376, 155 Ga. 460, 1923 Ga. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cottingham-v-cottingham-ga-1923.

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