Harrison v. Harrison , 201 Ga. 21 ( 1946 )

Where a wife files a petition for divorce, alimony, attorney's fees, and custody of a minor child, and by an interlocutory order is awarded temporary alimony, attorney's fees, and custody of the child, who was in possession of the husband when the suit was filed, and where, to the suit, the husband files a plea to the jurisdiction of his person, which at the trial term is admitted by the wife to be meritorious, and where the wife then amends her petition by striking all prayers except for process and custody of the child — it was not error for the court, upon motion of the husband, to dismiss the wife's amended petition, for the reason that when the wife struck her prayer for divorce the issue as to the custody of the child was eliminated, as this issue was only an incident to the divorce proceeding. Black v. Black, 165 Ga. 243 (4), (140 S.E. 364).

(a) The fact that husband, wife, and child were all present in court at the time of the amendment and motion to dismiss the wife's petition, would not convert the proceeding to one of habeas corpus.

(b) The case is not controlled by the rulings in Broomhead v. Chisolm, 47 Ga. 390; Simmons v. Georgia Iron Coal Co., 117 Ga. 350 (43 S.E. 780, 61 L.R.A. 739); Crowell v. Crowell, 190 Ga. 501 (9 S.E.2d 628), and similar cases, as each was a habeas corpus proceeding wherein unlawful detention was a vital element, and no such element is present in the instant case.

(c) In view of the foregoing, it becomes unnecessary to rule upon the question of jurisdiction.

Judgment affirmed. All the Justicesconcur.

No. 15520. JULY 3, 1946. Sara C. Harrison filed in Fulton Superior Court a petition against her husband, Hewlett O. Harrison, for divorce, temporary and permanent alimony, custody of their child, attorney's fees, injunction, and process. The petition was filed on September 4, 1945, and on the same day the court directed that the husband show cause, on September 17, 1945, why the prayers of the petition should not be granted.

On September 12, 1945, the husband filed a plea to the jurisdiction setting up that he was not a resident of Fulton County, but a resident of Forsyth County.

On September 19, 1945, the court awarded the custody of the child to the wife, also temporary alimony. On the 28th a judgment for attorney's fees was granted.

When the case came on for trial before a jury on April 4, 1946, upon the husband's plea to the jurisdiction, the wife admitted in open court that the plea to the jurisdiction, was meritorious, and amended her petition by alleging that the child was in her custody and possession, domiciled in Fulton County, physically present in court, and by striking the prayers for divorce and alimony, but retaining the original prayers for custody. When this amendment was approved and allowed filed, the husband moved to strike the petition as amended, for the reason that by striking the prayer for divorce and alimony, this carried with it the prayer for custody of the child, which was only an incident to the suit for divorce and alimony. The wife contended: that, notwithstanding the court had no jurisdiction of the person of her husband at the time of the institution of the suit, by an interlocutory order she had acquired the custody of the child from the husband; that the husband, wife, and child were present in court; and that custody of the child was primarily involved and was an essential question in the case. The court sustained the husband's oral motion to strike the wife's petition as amended, but granted a supersedeas to preserve the status until the decision could be reviewed. The exception is to this judgment.