Robertson v. Robertson , 196 Ga. 517 ( 1943 )

1. Where, in a petition in equity to set aside a divorce as null and void, it was alleged that the defendant had obtained from petitioner a divorce without having served her with or securing her acknowledgment of process of the divorce suit, and that petitioner and defendant had continued to live together until November 1, 1942, and that the divorce was granted in October or November, the petition was sufficient to indicate and specify the particular transaction upon which the cause was declared, and therefore contained enough to amend by. The amendment allowed was an amplification of the allegations of the petition with respect to the alleged fraudulent conduct of the defendant in procuring the divorce, and as pointing out the time of the granting of the divorce, and was not subject to the objection that it set up a new and distinct cause of action.

2. The allegations of the petition, to the effect that the defendant had obtained against the petitioner a divorce on November 2, 1942, although they had lived together as husband and wife until November 1, 1942, that petitioner had no knowledge of the pendency of the divorce action against her, she not having been served with process of the suit, nor had she acknowledged service thereof, and that the defendant had concealed from her and kept her in ignorance of the pending suit, were sufficient as grounds of fraud for setting aside in equity the divorce decree.

3. Where the allegations of an equitable petition are sufficient to show a cause of action for some of the relief prayed for, it will not be dismissed upon grounds of demurrer which are directed at the petition as a whole.

No. 14619. SEPTEMBER 10, 1943. On December 7, 1942, Mrs. Elizabeth Bagley Robertson filed in Muscogee superior court her equitable petition against Stanley M. Robertson, alleged to be a resident of Muscogee County. The petitioner alleged, that she and the defendant were married February 15, 1942, and lived together as man and wife in Columbus, Georgia, until November 1, 1942, during which time she discharged all of her duties as a faithful and affectionate wife, and did nothing to cause or justify the defendant in leaving her. On November 1, 1942, the defendant took her to the home of her parents, Mr. and Mrs. W. H. Bagley, in Rome, Georgia, leaving her there with the knowledge that a child was soon to be born to her; and the birth of the child followed on December 3, 1942. Petitioner is now living in a bona fide state of separation from her husband, who claims to have obtained a divorce from her in October or November, and married another woman on or about November 29, 1942. Petitioner was never served with any process, nor did she acknowledge service if a divorce petition was filed; and even if a divorce decree was granted, it is null and void and does not preclude her from filing this suit for alimony, since she and the defendant continued to live together in Columbus until November 1, 1942. Pertinent allegations were made with respect to the defendant's occupation, his earning capacity, property owned by him, as well as averments laying the foundation for the issuance of the writ of ne exeat. The prayers were, for temporary and permanent alimony for the support of herself and infant child, that the alleged divorce decree be declared void and set aside, injunction against changing the status of the property described in the petition, rule nisi, process, and general relief. On December 31, 1942, petitioner filed an amendment (which was allowed, subject to objection) alleging that on November 2, 1942, the defendant obtained in Muscogee superior court what purported to be a decree of total divorce, although petitioner was ignorant of any divorce proceeding against her. She was not negligent in not knowing thereof, and she did not employ or request counsel to represent her. She would have defended such proceeding had she known of its pendency, as she had a good defense. She denied the allegations of cruelty set forth in the divorce suit, and averred that she was living with the defendant at the time, and he did not inform her that he had filed such a suit. A prayer was added, for attorneys fee in the prosecution of her suit.

On January 9, 1943, the defendant filed a general demurrer to the petition, on the grounds (1) that no cause of action was set forth; (2) that no legal or equitable ground was alleged for setting aside the verdicts and judgment complained of; and (3) that the petition is one for collection of alimony by virtue of a marriage that has been dissolved by a divorce between the parties. Objections to the allowance of the amendment were, that the petition failed to set out a cause of action, in form or substance, sufficient to admit an amendment, and that it set out a new and distinct cause of action, and was not in aid of any matter contained in the petition. A further amendment, praying that the divorce verdicts be set aside and declared void, was allowed. The court overruled the objections to the amendment and the demurrer, and the defendant excepted. 1. The present suit is a direct and independent proceeding in equity to set aside the first and second verdicts and the decree of divorce granted to the defendant and against the petitioner, as null and void because of the fraud of the defendant in obtaining the divorce. The first question to be considered is the allowance of the amendment over the objection that the petition failed to set out a cause of action sufficient in form and substance to admit an amendment. A declaration, whether at law or in equity, may be amended at any stage of the proceeding in matter of form or of substance, provided there is in it enough to amend by. Code, § 81-1301. The general rule as to what constitutes enough to amend by was so clearly announced in Ellison v. Georgia Railroad Co.,87 Ga. 691 (13 S.E. 809), that it was later codified (§ 81-1302) as follows: "A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action shall be enough to amend by. The jurisdiction of the court may be shown and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration shall omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment." As was stated in Rowland Co. v. Kell Co., 27 Ga. App. 107, 109 (107 S.E. 602), there have been so many interpretations of this section by this court that little difficulty should be encountered in determining when a proposed amendment to a petition is legally permissible, and that a "proper construction and application of the sections of the Code above referred to would be sufficient for determining the question" here involved. The declaration in the present case in its original draft, while somewhat lean and meager, is not so bereft of allegations essential to show the design of the pleader and the transaction or subject-matter of the cause declared upon. It contains the three necessary classes of substance, viz., parties, jurisdiction, and subject-matter. The subject-matter was the fraudulently obtaining by the defendant of a divorce. It is of course necessary that a substantial cause of action appear; otherwise there is not enough to amend by. And as to the requirements of the law of pleading, a substantial cause of action is stated if the facts alleged are sufficient to identify a particular legal right belonging to the plaintiff, and a violation of that right by the defendant resulting in some form of loss or damage to the plaintiff. Ellison v. GeorgiaRailroad, Co., supra, Rowland Co. v. Kell Co., supra; Cityof Columbus v. Anglin, 120 Ga. 785 (48 S.E. 318). Measured by these rules, the declaration set out a substantial cause of action, at least one sufficient to indicate and specify the particular transaction complained of, so as to make it amendable.

The amendment allowed was germane, and did not set out a new and distinct cause of action. The petition sought to have the alleged divorce decree declared null and void because of fraud. The amendment amplified the allegations of the petition by setting out where and when the divorce was granted. It was explanatory of the alleged fraud practiced by the defendant in keeping the plaintiff in ignorance of the pendency of the divorce action. It has recently been said by this court, in Owens v.Owens, 190 Ga. 191, 193 (8 S.E.2d 644): "A proper test of whether or not a declaration contains enough to amend by requires a consideration of (1) the declaration, (2) the law related to that action, and (3) the offered amendment. If the offered amendment spans the chasm between the declaration and the requirements of the law, the declaration is amendable in the manner offered by such amendment." That is what the amendment did in the present case, and it was properly allowed.

2. Since the demurrer to the petition was filed after the filing and allowance of the amendment, and in view of the statement in the bill of exceptions that "the court entered upon said objection and demurrers an order and judgment . . overruling defendant's general demurrer to plaintiff's petition and amendments," the demurrer will be treated as having been directed to the petition as amended. Equity will set aside by decree a judgment obtained by the fraud of the adverse party, if the petitioner is without fault or negligence. Code, §§ 37-219, 110-710. The fraud complained of in the present case was the procuring by the defendant of a divorce without serving the petitioner with process or obtaining an acknowledgment thereof, and the continued cohabitation of the parties until the day before the actual granting of the divorce, and the act of the defendant during such cohabitation in keeping his wife in ignorance of the pendency of the divorce action. This alleged conduct on the part of the defendant in concealing from his wife the fact that he had instituted a libel for divorce against her was a rank fraud. Two concurrent verdicts of two juries, at different terms of court, are necessary to the granting of a total divorce. Code, § 30-101. If the defendant obtained his final verdict and decree of divorce on November 2, 1942, that being the day next after the day he took his wife to Rome and left her with her parents, he perforce was living with his wife at Columbus when the first verdict was granted, since it necessarily was rendered at some term previously to the term at which the final verdict and decree were granted. The facts alleged were sufficient as grounds of fraud for setting aside in equity the verdicts and decree of divorce. See Mills v. Millis, 165 Ga. 233 (140 S.E. 503); Smith v. Smith, 173 Ga. 718 (161 S.E. 254); Haygood v.Haygood, 190 Ga. 445 (5) (9 S.E.2d 834, 130 A.L.R. 87).

3. In another ground of demurrer, not argued in the brief of the plaintiff in error, it is insisted that the petition should be dismissed as being a suit for recovery of temporary and permanent alimony by virtue of a marriage that had been dissolved by a divorce. The demurrer is aimed at the petition as a whole, without specially attacking it in any particular. Having held that the allegations of fraud in the procurement of the divorce stated a cause of action for setting aside in equity the decree of divorce, the action will not be dismissed upon other grounds of general demurrer, even if otherwise good, which go to the petition as a whole. Carolina Construction Co. v. Branch,164 Ga. 837 (3 a) (139 S.E. 676); Terry v. Chandler, 172 Ga. 715 (158 S.E. 572);Shingler v. Shingler, 184 Ga. 671, 672 (192 S.E. 824).

There was no error in overruling the demurrer.

Judgment affirmed. All the Justices concur.