Smith v. Smith

Supreme Court of Georgia

Smith v. Smith

13 S.E.2d 798, 191 Ga. 675, 1941 Ga. LEXIS 371

CourtSupreme Court of Georgia

DecidedMarch 14, 1941

Docket13603.

StatusPublished

Cited by5 cases

This text of 13 S.E.2d 798 (Smith v. Smith) 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

Smith v. Smith, 13 S.E.2d 798, 191 Ga. 675, 1941 Ga. LEXIS 371 (Ga. 1941).

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Opinion

Duckworth, Justice.

The petition seeks to enjoin enforcement of a contempt order for non-payment of a judgment for alimony, and to set aside the alimony judgment, on grounds of alleged fraud. An exhibit attached to the petition shows a written acknowledgment of service, waiver of process, and appearance, signed by this petitioner, which it is admitted was filed as a part of the pleadings in the alimony proceeding. The petition alleges that this acknowledgment of service was intended for the divorce suit only, and that the fraud consists in the fact that the suit was for divorce and alimony. The acknowledgment of service and waiver of process identifies the suit by naming the parties and the court and the return term. The exception is to a judgment sustaining a general demurrer and dismissing the petition. Held, that, under the facts as shown by the petition, the defendant in the alimony suit is conclusively presumed to have known the contents of the petition; and if he suffered an unwarranted judgment, it is due to his negligence, and he is bound thereby. There was no error in the judgment sustaining the demurrer and dismissing the petition. Code, § 81-211; Hill v. Hatcher, 53 Ga. 291; Epps v. Buckmaster, 104 Ga. 698 (30 S. E. 959); Henry v. Johnson, 178 Ga. 541 (173 S. E. 659).

Judgment affirmed.

All the Justices concur. ■ *676 Howard, Henson & Howard and Thomas H. Goodwin, for plaintiff. Craighead & Dwyer, for defendant.

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Duckworth, Justice.

The petition seeks to enjoin enforcement of a contempt order for non-payment of a judgment for alimony, and to set aside the alimony judgment, on grounds of alleged fraud. An exhibit attached to the petition shows a written acknowledgment of service, waiver of process, and appearance, signed by this petitioner, which it is admitted was filed as a part of the pleadings in the alimony proceeding. The petition alleges that this acknowledgment of service was intended for the divorce suit only, and that the fraud consists in the fact that the suit was for divorce and alimony. The acknowledgment of service and waiver of process identifies the suit by naming the parties and the court and the return term. The exception is to a judgment sustaining a general demurrer and dismissing the petition. Held, that, under the facts as shown by the petition, the defendant in the alimony suit is conclusively presumed to have known the contents of the petition; and if he suffered an unwarranted judgment, it is due to his negligence, and he is bound thereby. There was no error in the judgment sustaining the demurrer and dismissing the petition. Code, § 81-211; Hill v. Hatcher, 53 Ga. 291; Epps v. Buckmaster, 104 Ga. 698 (30 S. E. 959); Henry v. Johnson, 178 Ga. 541 (173 S. E. 659).

Judgment affirmed.

All the Justices concur. ■ *676 Howard, Henson & Howard and Thomas H. Goodwin, for plaintiff. Craighead & Dwyer, for defendant.

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Bluebook (online)

13 S.E.2d 798, 191 Ga. 675, 1941 Ga. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-ga-1941.

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