Mickas v. Mickas

Supreme Court of Georgia

Mickas v. Mickas

189 S.E.2d 81, 229 Ga. 10, 1972 Ga. LEXIS 484

CourtSupreme Court of Georgia

DecidedApril 6, 1972

Docket27105

StatusPublished

Cited by3 cases

This text of 189 S.E.2d 81 (Mickas v. Mickas) 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

Mickas v. Mickas, 189 S.E.2d 81, 229 Ga. 10, 1972 Ga. LEXIS 484 (Ga. 1972).

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Opinion

Nichols, Justice.

Ralph Fred Mickas was granted a divorce from Marlene Mickas, and thereafter a motion to set aside and vacate such decree was filed by Marlene Mickas. This motion was overruled and the present appeal filed. Held:

1. The requirements of the Civil Practice Act (Ga. L. 1966, p. 609, as amended) (Code Ann. §81A-104 (e, 1, iii)) that notice of service by publication be published four times at least 7 days apart are met where the publication is made on the same day of successive weeks. See Code Ann. §§ 81A-106 (a), 102-102 (8).

2. It has long been the rule in Georgia that substance and not mere nomenclature controls in determining the. nature of pleadings. Chance v. Planters Rural Telephone Co-Op., 219 Ga. 1, 5 (131 SE2d 541). Accordingly, where, as in the present case, the substance of the plaintiff’s pleading seeking a divorce was sufficient to comport with the statutory requirements whether denominated as a "complaint” or "petition” is immaterial.

3. Allegations that the defendant is a resident of another [11]*11state and that the plaintiff has been a resident of the county in Georgia where the divorce action is filed for more than six months is a sufficient allegation of venue. Tate v. Tate, 220 Ga. 393 (139 SE2d 297). Such an allegation is distinguishable from that in Johnson v. Johnson, 222 Ga. 433 (150 SE2d 684) relied upon by the appellant where the allegations were merely that the plaintiff had been a resident of Georgia for six months. No error of law appearing, the judgment overruling the appellant’s motion to vacate and set aside the divorce decree is affirmed.

Argued March 15, 1972 Decided April 6, 1972. G. Gibson Dean, II, for appellee.

Judgment affirmed.

All the Justices concur.

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Nichols, Justice.

Ralph Fred Mickas was granted a divorce from Marlene Mickas, and thereafter a motion to set aside and vacate such decree was filed by Marlene Mickas. This motion was overruled and the present appeal filed. Held:

1. The requirements of the Civil Practice Act (Ga. L. 1966, p. 609, as amended) (Code Ann. §81A-104 (e, 1, iii)) that notice of service by publication be published four times at least 7 days apart are met where the publication is made on the same day of successive weeks. See Code Ann. §§ 81A-106 (a), 102-102 (8).

2. It has long been the rule in Georgia that substance and not mere nomenclature controls in determining the. nature of pleadings. Chance v. Planters Rural Telephone Co-Op., 219 Ga. 1, 5 (131 SE2d 541). Accordingly, where, as in the present case, the substance of the plaintiff’s pleading seeking a divorce was sufficient to comport with the statutory requirements whether denominated as a "complaint” or "petition” is immaterial.

3. Allegations that the defendant is a resident of another [11]*11state and that the plaintiff has been a resident of the county in Georgia where the divorce action is filed for more than six months is a sufficient allegation of venue. Tate v. Tate, 220 Ga. 393 (139 SE2d 297). Such an allegation is distinguishable from that in Johnson v. Johnson, 222 Ga. 433 (150 SE2d 684) relied upon by the appellant where the allegations were merely that the plaintiff had been a resident of Georgia for six months. No error of law appearing, the judgment overruling the appellant’s motion to vacate and set aside the divorce decree is affirmed.

Argued March 15, 1972 Decided April 6, 1972. G. Gibson Dean, II, for appellee.

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

189 S.E.2d 81, 229 Ga. 10, 1972 Ga. LEXIS 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mickas-v-mickas-ga-1972.

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