Whitfield v. Whitfield

56 S.E. 490, 127 Ga. 419, 1907 Ga. LEXIS 287

• Court: Supreme Court of Georgia
• Decided: February 14, 1907
• Status: Published

Opinion

Cobb, P. J.

(After stating the facts.)

1. Counsel for the plaintiff in error, in his brief, contends that-a petition for alimony must be served personally, and that service-by leaving a copy at the most notorious place of abode is insufficient. It is stated, in the brief, that a special appearance was entered for the purpose of objecting to the service. The record fails to disclose-this. The only reference to the objection to the service is in that portion of the bill of exceptions referred to in the statement of' facts. As this statement, in reference to the motion to dismiss, immediately follows the preliminary statement in the bill of exceptions, as to the case coming on for hearing at the May term, it is necessarily to be inferred that this motion was made for the first time at the hearing. Prior to the hearing the defendant had entered a general appearance and filed a plea to the merits. The-answer filed by him neither refers to any motion filed, raising the question as to defect in the service, nor does it reserve the right to thereafter file such motion. An answer of this character, filed under such circumstances, is to be treated as a general appearance, and, in effect, waiving any defect in the service, or even absence of service altogether.

2. At the hearing the defendant offered the affidavit of a witness, which the court refused to admit or consider. On the hearing of nn application for temporary alimony the judge has the discretion to hear the testimony either by affidavits or orally. Rogers v. Rogers, 103 Ga. 763(1). In that case the judge exercised the discretion by hearing the testimony by affidavits. In the present case the judge exercised the discretion by requiring the witnesses to .appear in person and submit to cross-examination. It appears, from the bill of exceptions, that it was the uniform custom of the court, in the trial of alimony cases, to require the witnesses to be ^produced and subjected to cross-examination.

3. The evidence authorized the judgment rendered, and no sufficient reason has been shown for reversing the judgment.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.