Evans v. Evans , 197 Ga. 187 ( 1944 )

To a petition as twice amended, praying for custody of a minor child and that the defendants be adjudged in contempt of court, a demurrer was interposed on general and special grounds. The judge sustained the demurrer and struck so much of the petition as sought a change of custody, and overruled the demurrer in so far as it attacked the allegation seeking to hold the defendants in contempt of court. The only exception is to this ruling. Held, that the writ of error must be dismissed, because the bill of exceptions was sued out prematurely, the only ruling complained of not being one that finally disposed of the case, and there being no reason why the plaintiffs could not protect their rights by exceptions pendente lite. Code, § 6-701; Richter v. Macon Gas Co., 144 Ga. 650 (2) (87 S.E. 895); Hitchcock v. Hamilton, 184 Ga. 700 (192 S.E. 726); Henderson v. Anderson, 188 Ga. 118 (3 S.E.2d 97); Mauldin v. Kendrick, 192 Ga. 741 (16 S.E.2d 555); Robinson v. Georgia Power Co., 193 Ga. 51 (17 S.E.2d 55).

Writ of error dismissed. All the Justices concur, except Jenkins, P. J., absent on account of illness.

No. 14730. JANUARY 6, 1944. Mrs. Virginia Grim Evans obtained a divorce from Frank O. Evans. The judgment, rendered in accordance with an agreement entered into between the parties, awarded custody of their minor son to the mother, provided, however, that the father should have custody when home on furlough from the army, and the paternal grandparents should have custody on specified days each month. Subsequently the father and the paternal grandparents filed a petition against the mother and the maternal grandparents, alleging that due to a change of conditions since the divorce suit respondents are not fit and proper persons to retain custody. The petition contained a prayer that the child be awarded to the parental grand-parents while the father was in the army, and that he have custody upon his release. Plaintiffs were allowed to amend their petition by elaborating the acts of respondents in evading the provisions of the judgment in reference to visits of the child to the father and paternal grandparents; and a second amendment was allowed, alleging that the father has remarried and now has a suitable home for his child, in addition to the home of the paternal grandparents. The second amendment alleged further that respondents had conspired to evade the order of the court and prayed that they be adjudged in contempt of court. A demurrer was interposed by respondents on general and special grounds. The mother also filed an answer denying the material allegations of the petition. After hearing argument, the judge sustained the demurrer and struck so much of the petition as sought a change in custody, and overruled the demurrer in so far as it attacked the allegations seeking to hold defendants in contempt of court. The only exception is to that judgment.