Saldivia v. Saldivia , 218 Ga. 98 ( 1962 )

218 Ga. 98 (1962) 126 S.E.2d 615

SALDIVIA
v.
SALDIVIA.

21688.

Supreme Court of Georgia.

Argued June 13, 1962. Decided June 25, 1962.

Gernstein & Carter, for plaintiff in error.

Strother & Spence, G. H. Strother, contra.

DUCKWORTH, Chief Justice.

To the amended petition for divorce, which alleged that the petitioner and the defendant "entered into a common-law relationship," lived together for about seven months, and "set themselves forth as man and wife and were known" as such, and to whom was born a child, and the defendant paid the doctor's bills and for drugs, was attached an exhibit, a contract between the parties concerning custody of the child which contained the following: "The parties hereto are not now nor have they ever been married... There has never been any intent on the part of either party to marry the other and whereas neither party has any intent to enter into marriage with the other." The exception here is to the judgment overruling defendant's general demurrer to the petition. Held:

Whenever allegations contradict an attached exhibit, the exhibit controls. Vandiver v. Endicott, 215 Ga. 250, 251 (109 SE2d 775); Irwin v. Dailey, 216 Ga. 630, 645 (dissent) (118 SE2d 827). Thus construed, no marriage is shown (Peacock v. Peacock, 196 Ga. 441, 26 SE2d 608), and the court erred in overruling the demurrer.

Judgment reversed. All the Justices concur.