Hogan v. Hogan , 148 Ga. 151 ( 1918 )

Gilbert, J.

A petition for divorce, alimony, and counsel fees was ad dressed to the superior court of Irwin County. It was presented to the judge thereof, who, on February 7, 1918, issued a rule nisi requiring the defendant to show cause on February 23, 1918, at a designated place, why temporary alimony and counsel fees should not be allowed; and also ordered the petition filed and the defendant served. The petition was filed on February 9, 1918, and the clerk of the court attached a defective process, the same not being addressed to the sheriff of the said county and his lawful deputies, and erroneously requiring the defendant to appear “at the next term of Irwin Superior Court to be held on the first Monday in April,” whereas, the next regular term of that court was required by law to meet on the third Monday in April. The defendant appeared specially, at the chambers of the judge at the time appointed for the hearing in regard to temporary alimony and counsel fees; and moved to dismiss the proceedings, contending that the process was null and void because not directed to the sheriff or lawful deputy or other officer authorized by law to make service thereof, and because the process required his appearance on the first Monday in April instead of the third Monday in April. The plaintiff then and there offered an amendment correcting these defects in the process, directing the same to the sheriff of Irwin County and his lawful deputies, and changing the requirement as to attendance to the third Monday in April as provided by law. The court heard evidence, and then allowed temporary alimony and counsel«fees. The plaintiff excepted to the allowance of the amendment, and also to the allowance of alimony and counsel fees. Held:

No. 888. May 17, 1918.

Temporary alimony. Before Judge Eve. Irwin superior court. February 18, 1918.

Philip Newbern, for plaintiff in error. Charles W. Bussell and J esse Granlham, contra.'

1. The process was defective, but not void; and was therefore amendable. Mitchell v. Long, 74 Ga. 94 (3); Richmond & Danville R. Co. v. Benson, 86 Ga. 203 (12 S. E. 357, 22 Am. St. R. 446); Winn v. Butts, 127 Ga. 385 (2), 388 (56 S. E. 406); Booth v. State, 131 Ga. 750 (5), 760 (63 S. E. 502).

2. The appearance by the defendant at the chambers hearing was in a county other than Irwin, and was in obedience to the rule nisi issued by the judge, and not by virtue of the process. The irregularity of the process was not really before the court at this hearing. Giles v. Cook, 146 Ga. 436 (91 S. E. 411).

3. Upon conflicting evidence the discretion of the trial judge in awarding temporary alimony and counsel fees will not be controlled where abuse is not shown.

Judgment affirmed.

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