Bender v. Bender , 98 Ga. 717 ( 1896 )

Lumpkin, Justice.

On the 12th day of February, 1894, Mrs. Bender brought an action for a divorce against her husband. Immediately thereafter, she filed an application for temporary alimony in behalf of herself and a minor child. This application was heard and denied on the 22d day of March, 1894, and the plaintiff filed exceptions pendente lite. Two verdicts in the divorce case were subsequently rendered in her behalf, the first at the September term, 1894, and the second at the September term, 1895. A judgment of divorce was entered in accordance with these verdicts. This judgment was silent as to alimony. After its rendition, Mrs. Bender filed a bill of exceptions, assigning error upon her exceptions pendente Ute above mentioned, but making no assignment of error in the divorce case proper. In other words, she undertook in the manner stated, after the adjudication of that case in her favor, to bring to this court for review the judgment refusing her application for temporary alimony.

1. The first section of the act of October 28th, 1870,. “to extend the provision for alimony to the family of the husband,” etc., now embodied in section 1741 of the code, provides that the presiding judge “may, either in term or vacation, grant alimony, or decree a sum sufficient for the support of the family of the husband dependent upon him and who may have a legal claim upon his support, as well as for the support of the wife.” Under this law, a wife who has instituted a libel for divorce against her husband may, while the same is pending, apply to the judge for temporary alimony in behalf of herself and a minor child; and under section 1748, of the code, which is taken from section 5 of the act of-1870, any judgment rendered upon such an application shall be the subject of a writ' of error,, and on the same terms as in injunction cases. It is therefore clear that, independently of the status of the divorce case, Mrs. Bender had an undoubted right to bring to this court by a “fast” writ of error tbe judgment denying her appli- - cation for temporary alimony.

2. She did not choose to pursue tbis course, but instead thereof, filed exceptions pendente Ute to tbat judgment, wbicb sbe allowed to remain pending in tbe trial court until after tbe final disposition therein of tbe divorce case. For many purposes, tbe law regards tbe application for alimony and tbe action for divorce as entirely separate and distinct proceedings. Tbis is manifest when it is remembered tbat tbe statute conferred upon 'Mrs. Bender a clear and undoubted right to have a speedy review upon its own merits of tbe judgment rendered in tbe alimony proceeding. She did not avail herself of tbe remedy thus extended to-her; and we entertain no doubt tbat it is too late, after tbe lapse of three terms of tbe court, and after tbe determination of the divorce case in her favor, for her, by filing a bill of exceptions in tbat case, to go back and bring up the-action of tbe judge complained of in her exceptions pendente lite. There is no law, nor any precedent of wbicb we are aware, sanctioning such a practice; and therefore,, even if the judgment sbe now seeks to enforce was wrong, sbe has lost her right to have it corrected by her own laches.

3. ¥e did, however, while consulting upon tbis case,, look into tbe merits, and our conclusion was tbat even if a proper bill of exceptions bad been filed in time, the result would have been tbe same; for it does not appear, under tbe facts disclosed by tbe record, tbat tbe trial judge abused bis discretion in refusing to grant tbe application for temporary alimony. Writ of error dismissed.