Lumpkin, J.
(After stating the foregoing facts.)
1. It was urged on behalf of the defendant in error that the ease was prematurely brought to this court, as the verdict directed was a first verdict for a total divorce, and it required two concurrent verdicts at different terms for the dissolution of the bonds of matrimony. It was therefore contended that the case was still pending in the trial court,, and could not-be brought to this court, under the Civil Code of 1895, §5526, which declares that “No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of,' if it had beep, rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto.”' The procedure by which a total divorce may be obtained and. the bonds of matrimony dissolved differs materially, in. several [722] respects, from ordinary cases at law. The underlying reason for some of these differences is no doubt to be found in the fact that marriage, while termed a civil contract, is very unlike ordinary contracts, which may be made, modified, or abrogated at the will of the parties in interest. In the contract of marriage, and in the preservation and protection of the family relation, and of the offspring, the public, as well as the parties, is concerned. As instances of the recognition of this difference, the Civil Code, §3431, declares that “No court in this State shall grant divorce of any character to any person who has not been a bona fide resident of the State twelve months before' the filing of the application for divorce.” In no other suit is it required that the plaintiff shall reside in the State for a specified length of time. A respondent may recriminate and ask a divorce in his or her favor. Civil Code, §3433. If one verdict is found in favor of the respondent, the libelant can not dismiss his or her suit without the consent of the opposite party. §3434. In the dissolution of the marriage contract alimony may be awarded. §3435. After the separation of the parties and before final verdict, the power of transfer of his property by the husband is limited. §3430. These citations are sufficient to show a marked difference between proceedings to obtain a total divorce and ordinary actions to enforce or rescind contracts, or to recover damages for torts.
The constitution (art. 6, sec. 15, par. 1, Civil Code, §5867) declares that “No total divorce shall be granted, except on the concurrent verdict of two juries at different terms of the court.” A divorce from bed and board may be granted on the verdict of one jury. Civil Code, §3435. Before the bonds of matrimony are dissolved there must be two distinct and separate trials, in each of which a verdict shall be rendered in favor of a total divorqe. If the first verdict should be in favor of the defendant, no further proceeding could be had by the plaintiff towards obtaining another verdict. Where the basis of the suit is cruel treatment or habitual intoxication,, the jury, in their discretion, may grant either a total or partial divorce. §3437. In -some respects, a proceeding to obtain a total divorce is like two suits, consolidated into one, the verdict in the first of which is necessary before proceeding to obtain one in the second. The second verdict declares the rights and disabilities of the< parties. §3445. .It [723] has been held that after the rendition of two verdicts in favor of a total divorce, it is not indispensable that a judgment declaring the divorce granted should be entered up in order for the marriage ■to be legally dissolved. Burns v. Lewis, 86 Ga. 592 (13 S. E. 123). This was under the constitution of 1868, but the provision on this subject there made was similar to that in the present constitution. The Civil Code, §2441, provides that “New trials may be granted from verdicts on applications for divorce, as in other cases.” This applies to either verdict. If a motion for a new trial, after the rendition of the first verdict for a total divorce,. is overruled, it has been held to be a. proper subject of exception to this court. Gholston v. Gholston, 31 Ga. 625. If so, there would seem to be no sound reason why a direction of a verdict by the presiding judge can not be brought up by bill of exceptions without the formality of moving for a new trial. The first verdict is not a mere interlocutory ruling entering into or leading up to the second trial, and as to which a bill of exceptions pendente lite should be filed. If unreversed it stands as final, though its effect is not to grant a total divorce until the second verdict is rendered. The two trials are conducted as distinctly as if they were based on two separate suits. It would be folly, if the court erred in the admission of evidence or in a charge to the jury on the first trial, to file exceptions- pendente lite, and await the seeond trial. Even though the jury should fail to grant a total divorce on the seeond hearing, there would stand on the record unreversed a verdict of one jury declaring that the defendant had been guilty of the misconduct on which the suit was predicated; and if he could not by motion for a new trial or exceptions set aside that verdict, though erroneous, he would have no remedy against being branded by this unreversed declaration of the jury, whatever might be the second verdict. Such is not the la.w. Each trial is so far distinct that quoad-hoc it may be treated as a termination of the case, within the meaning of the statutes, so as to allow a motion for a new trial to be made and exception taken to the judgment thereon, or direct exception taken to the direction of a verdict.
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Lumpkin, J.
(After stating the foregoing facts.)
1. It was urged on behalf of the defendant in error that the ease was prematurely brought to this court, as the verdict directed was a first verdict for a total divorce, and it required two concurrent verdicts at different terms for the dissolution of the bonds of matrimony. It was therefore contended that the case was still pending in the trial court,, and could not-be brought to this court, under the Civil Code of 1895, §5526, which declares that “No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of,' if it had beep, rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto.”' The procedure by which a total divorce may be obtained and. the bonds of matrimony dissolved differs materially, in. several [722] respects, from ordinary cases at law. The underlying reason for some of these differences is no doubt to be found in the fact that marriage, while termed a civil contract, is very unlike ordinary contracts, which may be made, modified, or abrogated at the will of the parties in interest. In the contract of marriage, and in the preservation and protection of the family relation, and of the offspring, the public, as well as the parties, is concerned. As instances of the recognition of this difference, the Civil Code, §3431, declares that “No court in this State shall grant divorce of any character to any person who has not been a bona fide resident of the State twelve months before' the filing of the application for divorce.” In no other suit is it required that the plaintiff shall reside in the State for a specified length of time. A respondent may recriminate and ask a divorce in his or her favor. Civil Code, §3433. If one verdict is found in favor of the respondent, the libelant can not dismiss his or her suit without the consent of the opposite party. §3434. In the dissolution of the marriage contract alimony may be awarded. §3435. After the separation of the parties and before final verdict, the power of transfer of his property by the husband is limited. §3430. These citations are sufficient to show a marked difference between proceedings to obtain a total divorce and ordinary actions to enforce or rescind contracts, or to recover damages for torts.
The constitution (art. 6, sec. 15, par. 1, Civil Code, §5867) declares that “No total divorce shall be granted, except on the concurrent verdict of two juries at different terms of the court.” A divorce from bed and board may be granted on the verdict of one jury. Civil Code, §3435. Before the bonds of matrimony are dissolved there must be two distinct and separate trials, in each of which a verdict shall be rendered in favor of a total divorqe. If the first verdict should be in favor of the defendant, no further proceeding could be had by the plaintiff towards obtaining another verdict. Where the basis of the suit is cruel treatment or habitual intoxication,, the jury, in their discretion, may grant either a total or partial divorce. §3437. In -some respects, a proceeding to obtain a total divorce is like two suits, consolidated into one, the verdict in the first of which is necessary before proceeding to obtain one in the second. The second verdict declares the rights and disabilities of the< parties. §3445. .It [723] has been held that after the rendition of two verdicts in favor of a total divorce, it is not indispensable that a judgment declaring the divorce granted should be entered up in order for the marriage ■to be legally dissolved. Burns v. Lewis, 86 Ga. 592 (13 S. E. 123). This was under the constitution of 1868, but the provision on this subject there made was similar to that in the present constitution. The Civil Code, §2441, provides that “New trials may be granted from verdicts on applications for divorce, as in other cases.” This applies to either verdict. If a motion for a new trial, after the rendition of the first verdict for a total divorce,. is overruled, it has been held to be a. proper subject of exception to this court. Gholston v. Gholston, 31 Ga. 625. If so, there would seem to be no sound reason why a direction of a verdict by the presiding judge can not be brought up by bill of exceptions without the formality of moving for a new trial. The first verdict is not a mere interlocutory ruling entering into or leading up to the second trial, and as to which a bill of exceptions pendente lite should be filed. If unreversed it stands as final, though its effect is not to grant a total divorce until the second verdict is rendered. The two trials are conducted as distinctly as if they were based on two separate suits. It would be folly, if the court erred in the admission of evidence or in a charge to the jury on the first trial, to file exceptions- pendente lite, and await the seeond trial. Even though the jury should fail to grant a total divorce on the seeond hearing, there would stand on the record unreversed a verdict of one jury declaring that the defendant had been guilty of the misconduct on which the suit was predicated; and if he could not by motion for a new trial or exceptions set aside that verdict, though erroneous, he would have no remedy against being branded by this unreversed declaration of the jury, whatever might be the second verdict. Such is not the la.w. Each trial is so far distinct that quoad-hoc it may be treated as a termination of the case, within the meaning of the statutes, so as to allow a motion for a new trial to be made and exception taken to the judgment thereon, or direct exception taken to the direction of a verdict.
2. Was the presiding judge right in directing a verdict in favor of the plaintiff for a total divorce? We think- not. In addition to what has been said above in regard to the peculiar nature [724] of actions for divorce, and the interest of the public therein, it is declared by the Civil Code, §2440, that “No verdict or judgment by default shall ever be taken in a suit for divorce, but the allegations in the petition must be established bjf evidence before the juries.” Section 2430 declares that the confessions of a party to acts of adultery or cruel treatment must be received with great caution, and if unsupported by corroborating circumstances, and made with a view to be evidence in the cause, shall not be sufficient for £he granting of a divorce. Section 2429 provides that if the adultery, desertion, cruel treatment, or intoxication complained of shall have been occasioned by collusion, with the intention of causing a divorce, or if the party complaining was consenting thereto, or if both parties have been guilty of like conduct, or if there has been voluntary condonation and cohabitation subsequently, and with notice of the acts, no divorce shall be granted; “and in all cases, the party sued may plead in defense the conduct of the party suing, and the jury may, on examination of the whole case, refuse a divorce.” In divorce cases which are proceeding ex parte the duty is expressly placed upon the judge to see that the grounds are legal, and sustained by proof, or to appoint the solicitor-general, or some other attorney of the court, to discharge that duty for him. Section 2455. He should not allow a divorce to be granted by mere consent, or default, or collusion, or where no ground therefor is made out. It may be gravely doubted if it would not be erroneous for him to direct a verdict granting a total divorce in any ease. At least it was so in this case. The wife pleaded and testified that her husband had been guilty of a long series of cruel acts, and even told her on several occasions that he wished she would leave and go to her people, as- she was ho longer of any service to him; and that he caused the separation by his own conduct. There was evidence indicating that the defendant, by reason of an injury resulting from childbirth, was afflicted with hysteria. But the jury saw her and heard her evidence, as well as that in conflict with it, and they could determine whether her statements' were accurate or were the result, in whole or in part, of her unfortunate condition. The judge should not have laid hold of the situation,'determined these facts for them, and directed a verdict.
Judgment reversed.
All the Justices concur.