Zachary v. Zachary

81 S.E. 120, 141 Ga. 404, 1914 Ga. LEXIS 220

• Court: Supreme Court of Georgia
• Decided: February 23, 1914
• Status: Published

Opinion

Atkinson, J.

1. A petition for divorce, on'the statutory ground of three years continuous desertion, can be amended before the first verdict by adding thereto a discretionary ground based on cruel treatment perpetrated before the suit was filed. The case of Ring v. Ring, 112 Ga. 854 (38 S. E. 330), was decided by four Justices, and is not controlling in so far as it may conflict with the ruling above announced:

2. The answer of the defendant denied the allegations of the petition . relative to the grounds of divorce, and contained allegations and a prayer seeking permanent alimony. The evidence as to cruel treatment upon the part of the wife was conflicting, and was such as would not ordinarily preclude the recovery of alimony. By virtue of the ruling in Davis v. Davis, 134 Ga. 804 (68 S. E. 594, 30 L. R. A. (N. S.) 73, 20 Ann. Cas. 20), it was error, under the pleadings and evidence, to omit to charge the law applicable to the subject of permanent alimony. Fish, C. J., and Atkinson, J., do not recede from their dissent in the case'last cited.

3. The judge charged that in their discretion the jury might grant a total or partial divorce, but did not explain the difference between the two. It would be proper to explain the difference as set forth in the Civil Code, § 2944 et seq.; but in the absence of an appropriate request such omission was not, under the facts of the case, sufficient ground for the grant of a new trial.

Judgment reversed, with direction.

All the Justices concur.

Divorce and alimony. Before Judge Jones. Stephens superior court. November 19, 1912.

"McMillan & Erwin, for plaintiff in errór. Á. Q-. & Julian McCurry and Claude Bond, contra