Lott v. Lott

94 S.E.2d 869, 212 Ga. 672, 1956 Ga. LEXIS 490

• Court: Supreme Court of Georgia
• Decided: October 10, 1956
• Docket: 19468
• Status: Published

Opinion

Hawkins, Justice.

1. While the act of the General Assembly approved March 6, 1956 (Ga. L. 1956, p. 405), amends Code (Ann.) § 30-101 so as to remove the provisions relative to a decree granting a total divorce not becoming final until the expiration of 30 days from the granting of the decree, and eliminates the provision requiring the filing of a proper written petition to modify or set aside the verdict within thirty days from the rendition and entering thereof — thus, in effect, on and after the date of the passage of the act, providing for the filing of a motion for new trial in such cases (Code § 102-104; Maynard v. Marshall, 91 Ga. 840 (2), 18 S. E. 403; Home Insurance Co. v. Willis, 179 Ga. 509 (1c), 176 S. E. 371; Anthony v. Penn, 212 Ga. 292, 92 S. E. 2d 14)—where, as in this case, on October 11, 1955, a divorce is granted by the jury with an award of permanent alimony, upon which a judgment is entered accordingly the same day, with an award of attorney fees, and no written petition to modify or set aside the verdict and judgment is filed within 30 days thereafter, as provided by the statute (Code, Ann., § 30-101; Ga. L. 1946, pp. 90, 91), the verdict and judgment become final and conclusive; and this is true in the instant case notwithstanding the fact that the defendant husband, on November 9, 1955, during the 30-day period immediately subsequent to the date of the verdict and judgment, filed a motion for new trial upon the usual general grounds, which was later amended by adding one ground based on newly discovered evidence, there being, under such circumstances, no authority in law for the filing of a motion for new trial during that period. Neal v. Neal, 209 Ga. 199 (71 S. E. 2d 229); Branch v. Branch, 211 Ga. 22 (83 S. E. 2d 601).

2. Since a motion for new trial was not an available remedy to review the judgment complained of, where no petition was filed to modify or set aside the judgment granting a divorce, the trial court erred in granting a new trial. Bedingfield v. Bedingfield, 211 Ga. 310 (3) (85 S. E. 2d 756).

Submitted September 11, 1956 Decided October 10, 1956 Rehearing denied October 29, 1956. Marshall Ewing, Arthur C. Farrar, George Jordan, Lee R. Williams, for plaintiff in error. George E. Maddox, Gibson & Maddox, contra.

Judgment reversed.

All the Justices concur, except Wyatt, P. J., not participating.