Walters v. Walters , 155 Ga. 414 ( 1923 )

Gilbert, J.

The exception is to a judgment awarding temporary alimony for the wife and minor children, and counsel fees. The petition alleged that the wife had separated from the husband because of the latter’s cruel treatment. It does not specifically allege that the “ husband and wife are living separately,” or that they “ are bona fide in a state of separation.” It does allege that, no action for divorce is pending. The bill of exceptions contains the verified petition and answer, but it does not recite that either of these papers was introduced, or that by agreement of the parties either was considered by the court as evidence. It recites that “ the defendant in error, . Ellie May Walters, introduced no evidence on the trial of the case,” but in another place it contains evidence of several persons designated as witnesses “ for the plaintiff.” The evidence purporting to have been introduced by the plaintiff . is wholly insufficient to support the judgment rendered, and under the recitals of the bill of exceptions we are not authorized to consider the plaintiff’s petition as evidence: It is quite probable that the bill of exceptions is imperfect in failing to show that the petition was used as evidence; but this court has no authority to construe it contrary to its plain recitals.

Judgment reversed.

All the Justices concur.