Perlotte v. Perlotte

Supreme Court of Georgia

Perlotte v. Perlotte

126 S.E.2d 220, 218 Ga. 27, 1962 Ga. LEXIS 418

CourtSupreme Court of Georgia

DecidedMay 21, 1962

Docket21643

StatusPublished

Cited by5 cases

This text of 126 S.E.2d 220 (Perlotte v. Perlotte) 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

Perlotte v. Perlotte, 126 S.E.2d 220, 218 Ga. 27, 1962 Ga. LEXIS 418 (Ga. 1962).

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Opinion

Duckworth, Chief Justice.

1. It is reversible error to charge a jury in a divorce case that, if the jury grants one party a divorce as a matter of law, the opposite party should also be granted a divorce. While some lower courts seemingly have misconstrued the 1960 amendment to Code Ann. § 30-122 (Ga. L. 1960, pp. 1024, 1025), “rights and disabilities” and “divorce” are not synonymous terms. See Moon v. Moon, 216 Ga. 627 (118 SE2d 473); McCartney v. McCartney, 217 Ga. 200 (121 SE2d 785). Since the contentions of the parties here diametrically oppose each other, the charge was confusing, misleading, erroneous, and harmful, and not a correct abstract principle of law, and the movant having properly assigned error thereon, it was error not to grant the motion for new trial on this special ground.

2. While the defendant prayed for a divorce and merely denied the cruel treatment alleged to have been committed by him, yet his evidence of cruel treatment, unexcepted to, amounted *28 to an amendment setting out cruel treatment as his ground for divorce; and it was erroneous for the court to instinct the jury that the defendant was not asking for a divorce. The court having failed to understand the issues, before it, and the charge having failed to correctly state the contentions of the parties, it was reversible error to charge as above, and the special ground complaining of this excerpt from the charge is also meritorious. See Whelchel v. Gainesville & Dahlonega Elec. R. Co., 116 Ga, 431 (3) (42 SE 776); Hightower v. Ansley, 126 Ga. 8 (6) (64 SE 939, 7 AC 927).

Argued May 14, 1962 Decided May 21, 1962. Colley ,& Orr, Wilbur A. Orr, Jr., for plaintiff in error. Jean William Pierce, contra.

3. The verdict of the jury granting a divorce to both parties, while authorized by the charge which is criticized above, is inconsistent, since the parties charge each other with like conduct of cruelty by mistreatment, and both offered evidence to sustain these contentions. Code § 30-109; Brackett v. Brackett, 217 Ga. 84 (121 SE2d 146); Moon v. Moon, 216 Ga. 627, supra; McCartney v. McCartney, 217 Ga. 200, supra. Therefore the objections complained of in the special grounds and the general grounds also must be sustained.

Judgment reversed.

All the Justices concur.

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Duckworth, Chief Justice.

1. It is reversible error to charge a jury in a divorce case that, if the jury grants one party a divorce as a matter of law, the opposite party should also be granted a divorce. While some lower courts seemingly have misconstrued the 1960 amendment to Code Ann. § 30-122 (Ga. L. 1960, pp. 1024, 1025), “rights and disabilities” and “divorce” are not synonymous terms. See Moon v. Moon, 216 Ga. 627 (118 SE2d 473); McCartney v. McCartney, 217 Ga. 200 (121 SE2d 785). Since the contentions of the parties here diametrically oppose each other, the charge was confusing, misleading, erroneous, and harmful, and not a correct abstract principle of law, and the movant having properly assigned error thereon, it was error not to grant the motion for new trial on this special ground.

2. While the defendant prayed for a divorce and merely denied the cruel treatment alleged to have been committed by him, yet his evidence of cruel treatment, unexcepted to, amounted *28 to an amendment setting out cruel treatment as his ground for divorce; and it was erroneous for the court to instinct the jury that the defendant was not asking for a divorce. The court having failed to understand the issues, before it, and the charge having failed to correctly state the contentions of the parties, it was reversible error to charge as above, and the special ground complaining of this excerpt from the charge is also meritorious. See Whelchel v. Gainesville & Dahlonega Elec. R. Co., 116 Ga, 431 (3) (42 SE 776); Hightower v. Ansley, 126 Ga. 8 (6) (64 SE 939, 7 AC 927).

Argued May 14, 1962 Decided May 21, 1962. Colley ,& Orr, Wilbur A. Orr, Jr., for plaintiff in error. Jean William Pierce, contra.

3. The verdict of the jury granting a divorce to both parties, while authorized by the charge which is criticized above, is inconsistent, since the parties charge each other with like conduct of cruelty by mistreatment, and both offered evidence to sustain these contentions. Code § 30-109; Brackett v. Brackett, 217 Ga. 84 (121 SE2d 146); Moon v. Moon, 216 Ga. 627, supra; McCartney v. McCartney, 217 Ga. 200, supra. Therefore the objections complained of in the special grounds and the general grounds also must be sustained.

Judgment reversed.

All the Justices concur.

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126 S.E.2d 220, 218 Ga. 27, 1962 Ga. LEXIS 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perlotte-v-perlotte-ga-1962.

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