Harrison v. Harrison

38 S.E.2d 817, 201 Ga. 21, 1946 Ga. LEXIS 360

• Court: Supreme Court of Georgia
• Decided: July 3, 1946
• Docket: 15520.
• Status: Published

Opinion

Atkinson, Justice.

Where a wife files a petition for divorce, alimony, attorney’s fees, and custody of a minor child, and by an interlocutory order is awarded temporary alimony, attorney’s fees, and custody of the child, who was in possession of the husband when the suit was filed, and where, to the suit, the husband files a plea to the jurisdiction of his person, which at the trial term is admitted by the wife to be meritorious, and where the wife then amends her petition by striking all prayers except for process and custody of the child — it was not error for the court, upon motion of the husband, to dismiss the wife’s amended petition, for the reason that when the wife struck her prayer for divorce the issue as to the custody of the child was eliminated, as this issue was only an incident to the divorce proceeding. Black v. Black, 165 Ga. 243 (4), (140 S. E. 364).

No. 15520. July 3, 1946.

(») The fact that husband, wife, and child were all present in court at the time of the amendment and motion to dismiss the wife’s petition, would not convert the proceeding to one of habeas corpus.

(6) The case is not controlled by the rulings in Broomhead v. Chisolm, 47 Ga. 390; Simmons v. Georgia Iron & Coal Co., 117 Ga. 305 (43 S. E. 780, 61 L. R. A. 739) ; Crowell v. Crowell, 190 Ga. 501 (9 S. E. 2d, 628), and similar eases, as each was a habeas corpus proceeding wherein unlawful detention was a vital element, and no such element is present in the instant case.

(c) In view of the foregoing, it becomes unnecessary to rule upon the question of jurisdiction.

Judgment affirmed.

All the Justices concur. Reuben Garland and William Hall, for plaintiff. Kelley & Hamrick, for defendant.