Flournoy v. Flournoy , 228 Ga. 224 ( 1971 )

228 Ga. 224 (1971) 184 S.E.2d 822

FLOURNOY
v.
FLOURNOY.

26653.

Supreme Court of Georgia.

Argued September 15, 1971. Decided October 21, 1971.

Rich, Bass, Kidd & Broome, Casper Rich, William F. C. Skinner, Jr., Robert J. Nesmith, for appellant.

Ingram, Flournoy & Downey, Conley Ingram, for appellee.

FELTON, Justice.

1. "Proceedings for a divorce and for alimony have always, under the practice in this State, been regarded as equitable." Hendrix v. Hendrix, 224 Ga. 662, 664 (163 SE2d 917) and cit.

2. "There is, in equity cases, no constitutional right of trial by jury in this State, but such right, so far as it exists, is statutory only." Bemis v. Armour Packing Co., 105 Ga. 293 (31 S.E. 173); Crowell v. Akin, 152 Ga. 126, 135 (108 S.E. 791, 19 A.L.R. 51) and cit.; Beasley v. Burt, 201 Ga. 144, 149 (39 SE2d 51) and cit.

3. Accordingly, Ga. L. 1960, pp. 1023, 1024 — which amended Code § 30-101 so as to provide that "Unless an issuable defense is filed as provided by law and [rather than ``or', as provided by the statute prior to the 1960 amendment] a jury trial demanded in writing by either party on or before the call of the case for trial, the judge shall hear and determine all issues of law and fact in all petitions for divorce and permanent alimony, and other issues made in the pleadings." — is not violative of the provisions of Art. VI, Sec. IV, Par. VII of the State Constitution (Code Ann. § 2-3907).

4. Therefore, in this proceeding for divorce and alimony, no issuable defense having been filed, the trial court did not err in its judgment, which was certified for review, refusing the appellant plaintiff's demand for a jury trial.

Judgment affirmed. All the Justices concur.