Price v. Price , 90 Ga. 244 ( 1892 )

Judgment affirmed.

On the interlocutory hearing defendants submitted their answer and a demurrer; the answer of Price, among other things, asking that he be awarded the custody of the children. After examining the demurrer, plaintiff by leave of the court amended her petition by striking therefrom her application for divorce. Defendants then objected to a further consideration of the case, for the reason that there was nothing left in the petition on which to base a hearing or order, maintaining that, if incident to the divorce suit, the application for alimony went out of court with it, and if brought as an independent cause of. action under the act of 1870, it was void because an application for divorce was pending, and could not be given vitality or legal existence by a subsequent dismissal of the divorce suit. The judge overruled the objection and ordered the hearing to proceed. Defendants by leave of the court amended-their demurrer. Plaintiff then offered an amendment to the petition, praying for discovery and propounding certain questions. Defendants objected to the allowance of the amendment for the reasons : (1) there was nothing left in the petition to amend by; (2) in the original petition discovery was waived, and discovery being in itself a distinct right or cause of action, the amendment offered a new and distinct cause of action. The court allowed the amendment and refused defendants’ request that plaintiff' be required to strike her waiver of discovery in the original petition.as inconsistent with the amendment just offered. Plaintiff stated that she did not desire discovery in answer to the amendment, for use on this hearing, and he.r counsel stated that injunction would not be insisted on at this hearing. The judge then proceeded to hear, consider and pass upon the questions of counsel fees, temporary alimony, and custody of children. The amounts and specific findings of the court are not objected to as contrary to or unsupported by the evidence.

The entire demurrer was: (1) The petition is not positively verified. To swear to the facts in the petition is no verification, unless the allegations are designated which are claimed to be facts. (2) The petition is multifarious, in that it contains entirely different subject-matters against different persons. It seeks in one action to enforce several rights and obtain various matters and forms of redress against several distinct persons. (3) An action for divorce is statutory, and the parties are limited to husband and wife. An action for permanent alimony is statutory, and cannot be maintained while libel -for divorce is pending. Third persons are not proper parties to either. • They cannot be joined together and coupled with prayer for injunction and application to cancel deeds. (4) There is a misjoinder of causes of action or grounds of relief, and an improper and illegal joinder of parties defendant. (5) There is no equity, law or cause of action set forth in the petition. According to the petition, plaintiff can obtain judgment for permanent alimony, if at all, only on the rendition of a second verdict. Until such judgment is obtained, plaintiff has no right to inquire as to the property rights and transactions of defendants.

The ground of demurrer added after the application for divorce was stricken, was: The application for divorce having been stricken and the other matter in the petition having been void, as combined with the petition or incident to or dependent upon it, there remains nothing in the case, and the same ought to be dismissed. No further action can legally be had.

The judge awarded the custody of one of the children to petitioner, and directed that the other two children be delivered into the custody of, and to be kept until the further order of court by Price’s sister. He further ordered that defendant should pay a certain monthly sum as temporary alimony and a certain sum as counsel fees to date. Defendants excepted, making various assignments of error, the nature of which is indicated above.

Price & J. S. Edwards and Adamson & Jackson, for plaintiff in error. J. M. McBride and S. L. Craven, by J. A. Noyes, contra.