Peacock v. Peacock , 212 Ga. 401 ( 1956 )

Hawkins, Justice,

dissenting. I dissent from the ruling made in the second division of the opinion, and from the judgment dismissing the cross-bill of exceptions. Under the act of 1946 (Ga. L. 1946, p. 726), 'amending Code § 6-806, where the certificate of the trial judge to the bill of exceptions is not in the exact form prescribed by this Code section as amended, it is required that the trial judge make it affirmatively appear what portion, if any, of the recital of facts contained in the bill of exceptions he declines to certify as true, in the absence of which the certificate shall be construed as a verification of the contents of the bill. In the instant case, it does not affirmatively appear from the interlineation made by the trial judge what portion of the cross-bill of exceptions he disapproved, and the certificate should therefore be construed as a verification of the contents of the bill. W. T. Rawleigh Co. v. Forbes, 202 Ga. 425 (43 S. E. 2d 642); Crumley v. Hall, 202 Ga. 588 (43 S. E. 2d 646). However, under the facts of this case, the judgment therein complained of should be affirmed. There must be a wilful disobedience of the court’s decree or judgment by the offending party before he is in contempt of court and can be so adjudged. Here the trial judge, who was the trior of the issue, and vested with a broad discretionary power, found that there had been no such wilful disobedience, and it cannot be said that he has manifestly abused .the discretion vested in him. Corriher v. McElroy, 209 Ga. 885 (76 S. E. 2d 782); Yancey v. Mills, 210 Ga. 684 (82 S. E. 2d 505). It is my view, therefore, that the cross-bill of exceptions should not be dismissed, and that the judgment therein complained of should be affirmed.

I am authorized to say that Mr. Chief Justice. Duckworth and Mr. Justice Mobley concur in this dissent.